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CASES  ON  THE  LAW  OF  PROPERTY 

VOL.     I.    PERSONAL  PROPERTY. 

i;.V  Harry  A.  Bigelow,  Trofessor  of  Law  in  the 
University  of  Chicago. 

VOL.    IL     RIGHTS  IN  LAND. 

By  Ilavry  A.  Bigelow. 

VOL.  III.    TITLES  TO  REAL  PROPERTY. 

By   Ralph   \V.   Aighn-,  I'rofessor  of  Law  in  the 
University   of  Michigan. 

VOL.  IV.     FUTURE  INTERESTS. 

By  Albert  M.  Kales,  Professor  of  Law  in  North- 
western University. 

VOL.    V.     WILLS,  DESCENT,  AND  ADMINISTRA- 
TION. 

By  Coorge  P.  Costigan,  Jr.,  Professor  of  Law  in 
Isurtlnvestern  University. 


(.'I'ST. Wills 


CASES  ON  THE  LAW  OF  PROPERTY 

VOLUME  5 

WILLS,  DESCENT,  AND 
ADMINISTRATION 


BY 

GEORGE  P.  COSTIGAN,  JR. 

PBOFI^SSOE    OF   LAW    IN    NORTHWESTERN    UNIVERSITY 


AMERICAN  CASEBOOK  SERIES 

JAMES  BROWN  SCOTT 

GENERAL   EDITOR 


ST.    PAUL 

WEST  PUBLISHING  COMPANY 
1910 


Copyright,  1910 

BY 
WEST  PUBLISHING  COMPANY 


Copyright,  1917 

BY 

WEST  PUBLISHING  COMPANY 

(COST.WILLS) 


K'*  ^^,  *> 


THE  AMERICAN  CASEBOOK 

SERIES 


For  years  past  the  science  of  law  has  been  taught  by  lectures,  the 
use  of  text-books  and  more  recently  by  the  detailed  study,  in  the 
class-room,  of  selected  cases. 

Each  method  has  its  advocates,  but  it  is  generally  agreed  that  the 
lecture  system  should  be  discarded  because  in  it  the  lecturer  does 
the  work  and  the  student  is  either  a  willing  receptacle  or  offers  a 
passive  resistance.  It  is  not  too  much  to  say  that  the  lecture  system 
is  doomed. 

Instruction  by  the  means  of  text-books  as  a  supplement  or  sub- 
stitute for  the  formal  lecture  has  made  its  formal  entry  into  the  educa- 
tional world  and  obtains  widely ;  but  the  system  is  faulty  and  must  pass 
away  as  the  exclusive  means  of  studying  and  teaching  law.  It  is  an 
improvement  on  the  formal  lecture  in  that  the  student  works,  but  if  it 
cannot  be  said  that  he  works  to  no  purpose,  it  is  a  fact  that  he  works 
from  the  wrong  end.  The  rule  is  learned  without  the  reason,  or  both 
.  rule  and  reason  are  stated  in  the  abstract  as  the  resultant  rather  than 
as  the  process.  If  we  forget  the  rule  we  cannot  solve  the  problem;  if 
we  have  learned  to  solve  the  problem  it  is  a  simple  matter  to  formulate 
a  rule  of  our  own.  The  text-book  method  may  strengthen  the  mem- 
ory; it  may  not  train  the  mind,  nor  does  it  necessarily  strengthen  it. 
A  text,  if  it  be  short,  is  at  best  a  summary,  and  a  summary  presup- 
poses previous  knowledge. 

If,  however,  law  be  considered  as  a  science  rather  than  a  collection 
of  arbitrary  rules  and  regulations,  it  follows  that  it  should  be  studied 
as  a  science.  Thus  to  state  the  problem  is  to  solve  it ;  the  laboratory 
method  has  displaced  the  lecture,  and  the  text  yields  to  the  actual 
experiment.  The  law  reports  are  in  more  senses  than  one  books  of 
experiments,  and,  by  studying  the  actual  case,  the  student  co-operates 
with  the  judge  and  works  out  the  conclusion  however  complicated 
the  facts  or  the  principles  involved.  A  study  of  cases  arranged  his- 
torically develops  the  knowledge  of  the  law,  and  each  case  is  seen  to 
be  not  an  isolated  fact  but  a  necessary  link  in  the  chain  of  develop- 
ment. The  study  of  the  case  is  clearly  the  most  practical  method, 
for  the  student  already  does  in  his  undergraduate  days  what  he  must 
do  all  his  life;  it  is  curiously  the  most  theoretical  and  the  most  prac- 
tical. For  a  discussion  of  the  case  in  all  its  parts  develops  analysis, 
the  comparison  of  many  cases  establishes  a  general  principle,  and 

(iii) 


G70i73 


lY  PREFACE. 

the  arrangement  and  classification  of  principles  dealing  with  a  sub- 
ject make  the  law  on  that  subject. 

In  this  way  tr.\ining  and  knowledge,  the  means  and  the  end  of 
legal  study,  go  hand  and  hand. 

The  obvious  advantages  of  the  study  of  law  by  means  of  selected 
cases  make  its  universal  adoption  a  mere  question  of  time. 

The  only  serious  objections  made  to  the  case  method  are  that  it  takes 
too  much  time  to  give  a  student  the  requisite  knowledge  of  the  sub- 
ject in  this  way  and  that  the  system  loses  sight  of  the  difference  be- 
tween the  preparation  of  the  student  and  the  lifelong  training  of  the 
lawyer.  jMany  collections  of  cases  seem  open  to  these  objections, 
for  they  are  so  bulky  that  it  is  impossible  to  cover  a  particular  sub- 
ject with  them  in  the  time  ordinarily  allotted  to  it  in  the  class.  In 
this  way  the  student  discusses  only  a  part  of  a  subject.  His  knowl- 
edge is  thorough  as  far  as  it  goes,  but  it  is  incomplete  and  frag- 
mentary. The  knowledge  of  the  subject  as  a  whole  is  deliberately 
sacrificed  to  training  in  a  part  of  the  subject. 

It  would  seem  axiomatic  that  the  size  of  the  casebook  should  cor- 
respond in  general  to  the  amount  of  time  at  the  disposal  of  instructor 
and  student.  As  the  time  element  is,  in  most  cases,  a  nonexpansive 
quantity,  it  necessarily  follows  that,  if  only  a  half  to  two-thirds  of  the 
cases  in  the  present  collections  can  be  discussed  in  class,  the  pres- 
ent casebooks  are  a  third  to  a  half  too  long.  From  a  purely  practical 
and  economic  standpoint  it  is  a  mistake  to  ask  students  to  pay  for 
1,200  pages  when  they  can  only  use  600,  and  it  must  be  remembered 
that  in  many  schools,  and  with  many  students  in  all  schools,  the  mat- 
ter of  the  cost  of  casebooks  is  important.  Therefore,  for  purely 
practical  reasons,  it  is  believed  that  there  is  a  demand  for  casebooks 
physically  adapted  and  intended  for  use  as  a  whole  in  the  class-room. 

But  aside  from  this,  as  has  been  said,  the  existing  plan  sacrifices 
knowledge  to  training.  It  is  not  denied  that  training  is  important, 
nor  that  for  a  law  student,  considering  the  small  amount  of  actual 
knowledge  the  school  can  hope  to  give  him  in  comparison  with  the 
vast  and  daily  growing  body  of  the  law,  it  is  more  important  than 
mere  knowledge.  It  is,  however,  confidently  asserted  that  knowledge 
is,  after  all,  not  unimportant,  and  that,  in  the  inevitable  compromise 
between  training  and  knowledge,  the  present  casebooks  not  onlv  de- 
vote too  little  attention  relatively  to  the  inculcation  of  knowledge, 
but  that  they  sacrifice  unnecessarily  knowledge  to  training.  It  is  be- 
lieved that  a  greater  effort  should  be  made  to  cover  the  general  prin- 
ciples of  a  given  subject  in  the  time  allotted,  even  at  the  expense  of 
a  considerable  sacrifice  of  detail.  But  in  this  proposed  readjustment 
of  the  means  to  the  end,  the  fundamental  fact  cannot  be  overlooked 
that  law  is  a  developing  science  and  that  its  present  can  only  be  un- 
derstood through  the  medium  of  its  past.  It  is  recognized  as  im- 
perative that  a  sufficient  number  of  cases  be  given  under  each  topic 


PREFACE.  V 

treated  to  afford  a  basis  for  comparison  and  discrimination ;  to  show 
the  development  of  the  law  of  the  particular  topic  under  discussion ; 
and  to  afford  the  mental  training  for  which  the  case  system  neces- 
sarily stands.  To  take  a  familiar  illustration:  If  it  is  proposed  to 
include  in  a  casebook  on  Criminal  Law  one  case  on  abortion,  one  on 
libel,  two  on  perjury,  one  on  larceny  from  an  office,  and  if  in  order  to 
do  this  it  is  necessary  to  limit  the  number  of  cases  on  specific  intent  to 
such  a  degree  as  to  leave  too  few  on  this  topic  to  develop  it  fully 
and  to  furnish  the  student  with  training,  then  the  subjects  of  abor- 
tion, libel,  perjury,  and  larceny  from  an  office  should  be  wholly  omit- 
ted. The  student  must  needs  acquire  an  adequate  knowledge  of  these 
subjects,  but  the  training  already  had  in  the  underlying  principles  of 
criminal  law  will  render  the  acquisition  of  this  knowledge  compara- 
tively easy.  The  exercise  of  a  wise  discretion  would  treat  fundamen- 
tals thoroughly :  principle  should  not  yield  to  detail. 

Impressed  by  the  excellence  of  the  case  system  as  a  means  of  legal 
education,  but  convinced  that  no  satisfactory  adjustment  of  the  con- 
flict between  training  and  knowledge  under  existing  time  restrictions 
has  yet  been  found,  the  General  Editor  takes  pleasure  in  announcing 
a  series  of  scholarly  casebooks,  prepared  with  special  reference  to 
the  needs  and  limitations  of  the  class-room,  on  the  fundamental  sub- 
jects of  legal  education,  which,  through  a  judicious  rearrangement 
of  emphasis,  shall  provide  adequate  training  combined  with  a  thor- 
ough knowledge  of  the  general  principles  of  the  subject.  The  collec- 
tion will  develop  the  law  historically  and  scientifically;  English  cases 
will  give  the  origin  and  development  of  the  law  in  England ;  Ameri- 
can cases  will  trace  its  expansion  and  modification  in  America;  note.«^ 
and  annotations  will  suggest  phases  omitted  in  the  printed  case 
Cumulative  references  will  be  avoided,  for  the  footnote  may  not  hop* 
to  rival  the  digest. 

The  law  will  thus  be  presented  as  an  organic  growth,  and  the  neces- 
sary connection  between  the  past  and  the  present  will  be  obvious. 

The  importance  and  difficulty  of  the  subject  as  well  as  the  time  that 
can  properly  be  devoted  to  it  will  be  carefully  considered  so  that  each 
book  may  be  completed  within  the  time  allotted  to  the  particular  sub- 
ject. 

It  is  equally  obvious  that  some  subjects  are  treated  at  too  great 
length,  and  that  a  less  important  subject  demands  briefer  treatment. 
A  small  book  for  a  small  subject. 

In  this  way  it  will  be  alike  possible  for  teacher  and  class  to  com- 
plete each  book  instead  of  skimming  it  or  neglecting  whole  sections; 
and  more  subjects  may  be  elected  by  the  student  if  presented  in  short- 
er form  based  upon  the  relative  importance  of  the  subject  and  the 
time  allotted  to  its  mastery. 

Training  and  knowledge  go  hand  in  hand,  and  Training  and  Knowl- 
edge are  the  keynotes  of  the  series. 


V;  PREFACE. 

If  it  be  granted  that  all,  or  nearly  all,  the  studies  required  for  ad- 
mission to  the  bar  should  be  studied  in  course  by  every  student — and 
the  soundness  of  this  contention  can  hardly  be  seriously  doubted — it 
follows  necessarily  that  the  preparation  and  publication  of  collections 
of  cases  exactly  adapted  to  the  purpose  would  be  a  genuine  and  by 
no  means  unimportant  service  to  the  cause  of  legal  education.  And 
this  result  can  best  be  obtained  by  the  preparation  of  a  systematic 
series  of  casebooks  constructed  upon  a  uniform  plan  under  the  super- 
vision of  an  editor  in  chief. 

For  the  basis  of  calculation  the  hour  has  been  taken  as  the  unit.  The 
General  Editor's  personal  experience,  supplemented  by  the  experience 
of  others  in  the  class-room,  leads  to  the  belief  that  approximately  a 
book  of  400  pages  may  be  covered  by  the  average  student  in  half  a 
year  of  two  hours  a  week ;  that  a  book  of  600  pages  may  be  discussed 
in  class  in  three  hours  for  half  a  year;  that  a  book  of  800  pages  may 
be  completed  by  the  student  in  two  hours  a  week  throughout  the  year  ; 
and  a  class  may  reasonably  hope  to  master  a  volume  of  1,000  pages 
in  a  year  of  three  hours  a  week.  The  general  rule  will  be  subject  to 
some  modifications  in  connection  with  particular  topics  on  due  con- 
sideration of  their  relative  importance  and  difficulty,  and  the  time 
ordinarily  allotted  to  them  in  the  law  school  curriculum. 

The  following  subjects  are  deemed  essential  in  that  a  knowledge  of 
them  (with  the  exception  of  International  Law  and  General  Juris- 
prudence) is  universally  required  for  admission  to  the  bar: 

'  Administrative  Law.    ..-^''  Insurance. 

Agency.  International  Law.    " 

Bills  and  Notes.  Jurisprudence. 

Carriers.  Mortgages.    - 

Contracts.  Partnership. 

Corporations.  Personal  Property,  including 
Constitutional  Law.  the  Law  of  Bailment. 

Criminal  Law.  -d     i  t,  .     I  i^t  Year. 

Criminal  Procedure.  Real  Property,  j  2d     ;; 

Common-Law  Pleading.  Public  Corporations. 

Conflict  of  Laws.  Quasi  Contracts. 

Code  Pleading.  Sales.  " 

Damages.  Suretyship. 

Domestic  Relations.  Torts. 

Equity.  Trusts.  • 

Equity  Pleading.  Wills  and  Administration. 
V  Evidence. 


m- 


International  Law  is  included  in  the  list  of  essentials  from  its 
truisic  importance  in  our  system  of  law.    As  its  principles  are  simple 
m  comparison  with  municipal  law,  as  their  application  is  less  technical, 


PREFACE.  Vll 

and  as  the  cases  are  generally  interesting,  it  is  thought  that  the  book 
may  be  larger  than  otherwise  would  be  the  case. 

As  an  introduction  to  the  series  a  book  of  Selections  on  General 
Jurisprudence  of  about  500  pages  is  deemed  essential  to  completeness. 

The  preparation  of  the  casebooks  has  been  intrusted  to  experienced 
and  well-known  teachers  of  the  various  subjects  included,  so  that  the 
experience  of  the  class-room  and  the  needs  of  the  students  will  fur- 
nish a  sound  basis  of  selection. 

While  a  further  list  is  contemplated  of  usual  but  relatively  less  im- 
portant subjects  as  tested  by  the  requirements  for  admission  to  the 
bar,  no  announcement  of  them  is  made  at  present. 

The  following  gentlemen  of  standing  and  repute  in  the  profession 
are  at  present  actively  engaged  in  the  preparation  of  the  various  case- 
books on  the  indicated  subjects: 

George  W.  Kirchwey,  Dean  of  the  Columbia  University,  School  of 
Law.    Subject,  Real  Property. 

Nathan  Abbott,  Professor  of  Law,  Columbia  University.  (Formerly 
Dean  of  the  Stanford  University  Law  School.)  Subject,  Per- 
sonal Property. 

Frank  Irvine,  Dean  of  the  Cornell  University  School  of  Law.  Sub- 
ject, Evidence. 

Harry  S.  Richards,  Dean  of  the  University  of  Wisconsin  School  of 
Law.    Subject,  Corporations. 

James  Parker  Hall,  Dean  of  the  University  of  Chicago  School  of  Law. 
Subject,  Constitutional  Law. 

William  R.  Vance,  Dean  of  the  George  Washington  University  Law 
School.    Subject,  Insurance. 

Charles  M.  Hepburn,  Professor  of  Law,  University  of  Indiana.  Sub- 
ject, Torts. 

William  E.  Mikell,  Professor  of  Law,  University  of  Pennsylvania. 
Subjects,  Criminal  Law  and  Criminal  Procedure. 

George  P.  Costigan,  Jr.,  Professor  of  Law,  Northwestern  University 
Law  School.    Subject,  Wills  and  Administration. 

Floyd  R.  Mechem,  Professor  of  Law,  Chicago  University.  Subject, 
Damages.     (Co-author  with  Barry  Gilbert.) 

Barry  Gilbert,  Professor  of  Law,  University  of  Illinois.  Subject, 
Damages.     (Co-author  with  Floyd  R.  Mechem.) 

Thaddeus  D.  Kenneson,  Professor  of  Law,  University  of  New  York. 
Subject,  Trusts. 

Charles  Thaddeus  Terry,  Professor  of  Law,  Columbia  University. 
Subject,  Contracts. 


v/ 


PREFACE. 


If  it  be  granted  that  all,  or  nearly  all,  the  studies  required  for  ad- 
mission to  the  bar  should  be  studied  in  course  by  every  student — and 
the  soundness  of  this  contention  can  hardly  be  seriously  doubted — it 
follows  necessarily  that  the  preparation  and  publication  of  collections 
of  cases  exactly  adapted  to  the  purpose  would  be  a  genuine  and  by 
no  means  unimportant  service  to  the  cause  of  legal  education.  And 
this  result  can  best  be  obtained  by  the  preparation  of  a  systematic 
series  of  casebooks  constructed  upon  a  uniform  plan  under  the  super- 
vision of  an  editor  in  chief. 

For  the  basis  of  calculation  the  hour  has  been  taken  as  the  unit.  The 
General  Editor's  personal  experience,  supplemented  by  the  experience 
of  others  in  the  class-room,  leads  to  the  belief  that  approximately  a 
book  of  400  pages  may  be  covered  by  the  average  student  in  half  a 
year  of  two  hours  a  week;  that  a  book  of  600  pages  may  be  discussed 
in  class  in  three  hours  for  half  a  year;  that  a  book  of  800  pages  may 
be  completed  by  the  student  in  two  hours  a  week  throughout  the  year ; 
and  a  class  may  reasonably  hope  to  master  a  volume  of  1,000  pages 
in  a  year  of  three  hours  a  week.  The  general  rule  will  be  subject  to 
some  modifications  in  connection  with  particular  topics  on  due  con- 
sideration of  their  relative  importance  and  difficulty,  and  the  time 
ordinarily  allotted  to  them  in  the  law  school  curriculum. 

The  following  subjects  are  deemed  essential  in  that  a  knowledge  of 
them  (with  the  exception  of  International  Law  and  General  Juris- 
prudence) is  universally  required  for  admission  to  the  bar: 


"^  Administrative  Law.    »^ 

Agency. 

Rills  and  Notes. 

Carriers. 

Contracts. 

Corporations, 

Constitutional  Law. 

Criminal  Law. 

Criminal  Procedure. 

Common-Law  Pleading. 

Conflict  of  Laws. 

Code  Pleading. 

Damages. 

Domestic  Relations. 

Equity. 

Equity  Pleading, 
i  Evidence. 


Insurance. 
International  Law. 
Jurisprudence. 
Mortgages.     - 
Partnership. 
A  Personal  Property,  including 
the  Law  of  Bailment. 

Real  Property.  \  2d  ^^'"* 

I  3d       " 

Public  Corporations. 

Quasi  Contracts. 

Sales. 

Suretyship. 

Torts. 

Trusts.  • 

Wills  and  Administration. 


International  Law  is  included  in  the  list  of  essentials  from  its  in- 
trmsic  importance  in  our  system  of  law.  As  its  principles  are  simple 
in  comparison  with  municipal  law,  as  their  application  is  less  technical, 


PREFACE.  VU 

and  as  the  cases  are  generally  interesting,  it  is  thought  that  the  book 
may  be  larger  than  otherwise  would  be  the  case. 

As  an  introduction  to  the  series  a  book  of  Selections  on  General 
Jurisprudence  of  about  500  pages  is  deemed  essential  to  completeness. 

The  preparation  of  the  casebooks  has  been  intrusted  to  experienced 
and  well-known  teachers  of  the  various  subjects  included,  so  that  the 
experience  of  the  class-room  and  the  needs  of  the  students  will  fur- 
nish a  sound  basis  of  selection. 

While  a  further  list  is  contemplated  of  usual  but  relatively  less  im- 
portant subjects  as  tested  by  the  requirements  for  admission  to  the 
bar,  no  announcement  of  them  is  made  at  present. 

The  following  gentlemen  of  standing  and  repute  in  the  profession 
are  at  present  actively  engaged  in  the  preparation  of  the  various  case- 
books on  the  indicated  subjects: 

George  W.  Kirchwey,  Dean  of  the  Columbia  University,  School  of 
Law.    Subject,  Real  Property. 

Nathan  Abbott,  Professor  of  Law,  Columbia  University.  (Formerly 
Dean  of  the  Stanford  University  Law  School.)  Subject,  Per- 
sonal Property. 

Frank  Irvine,  Dean  of  the  Cornell  University  School  of  Law.  Sub- 
ject, Evidence. 

Harry  S.  Richards,  Dean  of  the  University  of  Wisconsin  School  of 
Law.    Subject,  Corporations. 

James  Parker  Hall,  Dean  of  the  University  of  Chicago  School  of  Law. 
Subject,  Constitutional  Law. 

William  R.  Vance,  Dean  of  the  George  Washington  University  Law 
School.    Subject,  Insurance. 

Charles  M.  Hepburn,  Professor  of  Law,  University  of  Indiana.  Sub- 
ject, Torts. 

William  E.  Mikell,  Professor  of  Law,  University  of  Pennsylvania. 
Subjects,  Criminal  Law  and  Criminal  Procedure. 

George  P.  Costigan,  Jr.,  Professor  of  Law,  Northwestern  University 
Law  School.    Subject,  Wills  and  Administration. 

Floyd  R.  Mechem,  Professor  of  Law,  Chicago  University.  Subject, 
Damages.     (Co-author  with  Barry  Gilbert.) 

Barry  Gilbert,  Professor  of  Law,  University  of  Illinois.  Subject, 
Damages.     (Co-author  with  Floyd  R.  Mechem.) 

Thaddeus  D.  Kenneson,  Professor  of  Law,  University  of  New  York. 
Subject,  Trusts. 

Charles  Thaddeus  Terry,  Professor  of  Law,  Columbia  University. 
Subject,  Contracts. 


VUl  PREFACE. 

Albert  M.  Kales,  Professor  of  Law,  Northwestern  University.    Sub- 
ject, Persons. 

Edwin  C.  Goddard,  Professor  of  Law,  University  of  Michigan.  Sicb- 
ject,  Agency. 

Howard  L.  Smith,  Professor  of  Law,  University  of  Wisconsin.  Sub- 
ject, Bills  and  Notes.    (Co-author  with  Wm.  Underhill  Moore.) 

W^m.  Underhill  Moore,  Professor  of  Law,  University  of  Wisconsin. 
Subject,  Bills  and  Notes.    (Co-author  with  Howard  L.  Smith.) 

Edward  S.  Thurston,  Professor  of  Law,  George  Washington  Univer- 
sity,   Subject,  Quasi  Contracts. 

Crawford  D.  Hening,  Professor  of  Law,  University  of  Pennsylvania. 
Subject,  Suretyship. 

Clarke  B.  \\'hittier,  Professor  of  Law,  University  of  Chicago.  Sub- 
ject, Pleading. 

Eugene  A.  Gilmore,  Professor  of  Law,  University  of  Wisconsin. 
Subject,  Partnership. 

Joshua  R.  Clark,  Jr.,  Assistant  Professor  of  Law,  George  Washington 
University.    Subject,  Mortgages. 

Ernst  Freund,  Professor  of  Law,  University  of  Chicago.  Subject, 
Administrative  Laiv. 

Frederick  Green,  Professor  of  Law,  University  of  Illinois.  Subject, 
Carriers. 

Ernest  G.  Lorenzen,  Professor  of  Law,  George  Washington  Univer- 
sity.   Subject,  Conflict  of  Lazvs. 

William  C.  Dennis,  Professor  of  Law,  George  Washington  University. 
Subject,  Public  Corporations. 

James  Brown  Scott,  Professor  of  Law,  George  Washington  Univer- 
sity; formerly  Professor  of  Law,  Columbia  University,  New 
York  City.  Subjects,  International  Law,  General  Jurisprudence-, 
Equity. 

James  Brown  Scott, 

General  Editor. 
WA.siii\(iT<)v,  D.  C,  July.  11)10. 


Following  are  the  books  of  the  Series  now  published,  or  in  press: 

Adtuliilstrntlvp  f.aw  DauiaKos 

Illlls  ntid  Notes  r.irtmM-shlp 

Cnrrlcrs  Suretyship 

Con  M let  of  r>inv8  Trusts 

Crlmfnnl  T,n\v  Wills  aud  Administration 

Crimliinl  rroeeduro 


PREFACE 


When  this  casebook  was  begun,  it  was  expected  that  it  would  cover 
wills  and  administration  only.  It  was  soon  found,  however,  that_  by 
teaching  tradition  in  this  country,  as  well  as  on  principle,  the  subject 
of  Descent  was  so  closely  bound  up  with  Wills  and  Administration  that 
it  ought  to  be  included  with  them.  The  book  was  therefore  extended 
in  number  of  pages  to  include  cases  on  descent,  and  the  title  was  ac- 
cordingly expanded  to  read,  Cases  on  Wills,  Descent,  and  Administra- 
tion. The  inclusion  of  these  three  subjects  in  one  volume  is  justified 
by  Abbott's  Cases  on  Descent,  Wills,  and  Administration  and  by  Vol- 
ume IV  of  Gray's  Cases  on  Property. 

The  compiler  of  a  casebook  on  such  a  widely  varied  subject-matter 
as  Wills,  Descent,  and  Administration  finds  not  the  least  of  his  tasks 
that  of  exclusion.  He  cannot  begin  to  put  in  everything  that  he  would 
like,  yet,  so  far  as  his  number  of  pages  allows,  he  must  leave  out  noth- 
ing that  teachers  of  the  subject  would  want  included.  Moreover,  he 
must  endeavor  to  give  properly  proportioned  space  to  the  various 
topics  treated,  knowing  full  well  that  he  cannot  hope  to  please  all  crit- 
ics. The  effort  of  the  compiler  has  been  to  give  to  each  topic  only 
that  space  which  its  intrinsic  difficulty  or  the  variety  of  decisions  upon 
it  seemed  to  demand.  Throughout  the  work  the  need  of  offering  a 
choice  of  material  for  teachers  to  select  from  has  been  kept  in  mind. 

Of  the  290  principal  cases  in  this  collection,  103  are  English  and 
Irish.  To  the  187  American  cases  the  different  jurisdictions  have  con- 
tributed as  follows :  Delaware,  Indiana,  North  Dakota,  Oregon,  and 
Utah,  1  case  each ;  Kentucky,  Mississippi,  South  Carolina,  Texas,  and 
Virginia,  2  cases  each;  Alabama,  Arkansas,  Kansas,  Nebraska,  Ohio, 
Vermont,  and  Wisconsin,  3  cases  each ;  Iowa,  Maryland,  and  the  fed- 
eral courts  (counted  as  one  jurisdiction),  4  cases  each ;  New  Hampshire, 
5  cases;  California,  Connecticut,  Maine,  and  Missouri,  6  cases  each; 
Georgia,  Michigan,  and  Minnesota,  7  cases  each;  New  Jersey  and 
North  Carolina,  8  cases  each ;  Rhode  Island,  9  cases ;  Pennsylvania, 
11  cases;  New  York,  13  cases;  Illinois,  16  cases;  and  Massachusetts, 
24  cases.  While  the  geographical  distribution  of  cases  selected  for  a 
book  of  this  character  is  largely  accidental,  it  is  believed  that  the  actual 
territorial  apportionment  is  unusually  good. 

Certain  cases  necessarily  find  a  place  in  any  collection  of  decisions 
on  the  subject,  and  the  judgment  of  previous  compilers  as  to  leading 
cases  has  not  been  lightly  disregarded.     Indebtedness   must  be  ac- 

(ix) 


X  PREFACE. 

knowledged  to  Professor  Abbott's  Cases  on  Descent,  Wills,  and  Ad- 
ministration, to  Professor  Mechem's  Cases  on  Succession,  and  to  Pro- 
fessor Gray's  Cases  on  Property. 

A  word  should  be  said  about  the  footnotes  added  by  the  compiler. 
On  the  subject  of  footnotes  great  differences  of  opinion  will  be  found 
among  law  school  teachers.  Some  prefer  practically  no  footnotes; 
others  want  what  is  in  effect  a  treatise  in  the  form  of  footnotes;  still 
others  favor  various  intermediate  kinds  of  footnotes.  In  this  particular 
casebook  the  footnotes  will  be  found  to  represent  an  intermediate  va- 
riety. They  make  no  attempt  to  collect  and  marshal  all  the  decisions 
on  a  given  point,  but  very  frequently  refer  to  readily  available  compila- 
tions of  such  decisions.  They  do  seek,  however,  to  indicate  conflicts 
of  authority  on  given  points,  where  such  conflicts  are  not  made  plain 
by  the  cases  given  in  the  text,  and  frequent  quotations  are  made  in 
them  for  the  elucidation  or  refutation  of  points  covered  by  cases  found 
in  the  text.  The  importance  of  serviceable  footnotes  has  been  kept 
constantly  in  mind  by  the  compiler. 

^  In  order  to  make  readily  available  the  quotations  placed  by  the  com- ' 
piler  in  the  text  and  in  the  footnotes  the  cases  quoted  from  are  in- 
cluded in  the  table  of  cases.    About  225  cases  are  thus  listed,  and  their 
geographical  apportionment  happens  to  be  much  the  same  as  that  of 
the  principal  cases. 

To  facilitate  reference  to  the  statutes,  sections  of  the  English  stat- 
utes have  been  printed  in  the  book  at  what  seemed  appropriate  places 
for  their  convenient  use;  but  those  sections  are  also  given  or  referred 
to  in  the  Appendix,  which  contains  a  reasonably  full  collection  of  the 
English  statutes. 

Geo.  p.  Costigan,  Jr. 
Chicago,  Illinois,  May  5,  1910. 


TABLE  OF   CONTENTS 


PARTI 

Last  Wills  and  Testaments. 

chapter  i. 


Definitions 


Page. 
1 


CHAPTER  II. 
HiSTOBT  OF  THE  LaW   OF   WlIXS  AND   OF  TESTAMENTS 3 


CHAPTER  III. 

Testamentabt  Capacity  and  Intent. 
Section 

1.  Infancy    ^ 

2.  Coverture    ^ 

3.  Alienage    ^^ 

4.  Conviction  of  Crime 1^ 

5.  Mental    Capacity ^^ 

6.  Fraud  and  Undue  Influence 31 

7.  Mistake    ^ 


CHAPTER  IV. 

Wills  and  Testaments  Distinguished  from  Certain  Other  Dispositions 

OF  Propertt. 

1.  From   Deeds *^ 

2.  From   Gifts  Causa   Mortis ^^ 

3.  From   Contracts  to  Bequeath  or  to  Devise 90 


CHAPTER  V.  I 

Kinds  of  Wills  and  of  Testaments. 

1.  A  Will  In  Writing ^ 

2.  Holographic  (or  Olographic)  Wills 94 

8.    Nuncupative   Wills 97 

4.  Conditional    Wills JJ^ 

5.  Joint  and  Mutual  Wills ^"' 

COST.WILLS  (xi) 


XU  TABLE  OF  CONTENTS. 


CHAPTER   VI. 


The  ExEctJTioN  of  Wkitten  Wills  and  Testaments. 
Section  Pag« 

1.  Statutes 122 

2.  Testator's  Knowledge  of  the  Instrument's  Contents 114 

3.  Testator's  Signature   116 

4.  Testator's  Acknowledgment,  Publication  and  Request  to  Witnesses  to 

Sign    133 

5.  Attestation  In  the  Presence  of  the  Testator  and,  WTien  Required,  in 

the  Presence  of  the  Other  Witness  or  Witnesses 147 

6.  The  Order  of  Signing 166 

7.  The  Witnesses'  Signatures  and  the  Attestation  Clause 174 

8.  Competency  of  the  Witnesses 1S6 

9.  Incorporation  by  Reference 202 


CHAPTER  VII. 

The  Revocation  of  Wills, 

1.  Statutes    228 

2.  Revocation  by  Subsequent  Instrument 229 

3.  Revocation  by  Burning,  Tearing,   Canceling,  Obliterating,  Mutilating 

or   Otherwise   Destroying. 241 

4.  So-Called  Revocation  by   Circumstances 272 

5.  Presumption  as  to  Revocation 307 

6.  Dependent  Relative  Revocation \,  308 


CHAPTER  VITI. 

The  Republication  and  Revival  of  Wills. 

1.  Statutes    335 

2.  Republication    .'.*.**.*.*.' .*.'.*  339 

3.  Revival 3l>8 


PART  II. 
Descent. 

chapter  i. 

The  Nature  of  Descent. 

L     Descent   and  Consanguinity 3g4 

2.  Biackstone's  Ca  nons   of   Descent !!!..'!**!!*"  3S6 

3.  Seisin    and    Descent 388 

4.  Descent  and   Distributions ...................[ 391 

5.  Pa  rtinl    Intestacy 306 

a     Kqultable  and  Legal  Descenilible  Interests '6Q7 


*ABLE   OF   CONTENTS.  ^11^ 

CHAPTER  II. 

Persons  Taking  by  Descent.  Page 

Section 

1.  The  Widow   as  "Heir" ^^^^ 

2.  Pretermitted    Heirs ^'^^ 

3.  Adopted    Children ' 

4.  Illegitimate  and  Legitimated  Children 4-d- 

5.  The  Murderer  of  the  Ancestor ^- 

6.  Persons  Civilly   Dead p.^ 

7.  Aliens    

CHAPTER  III. 
The  Liability  of  Heirs  foe  the  Ancestob's  Debts 453 

CHAPTER  IV. 

Breaking  Descent. 

1.  By    Deed ^^. 

2.  By    Devise 

CHAPTER  V. 

Shifting  Descents. 

474 

1.  Posthumous    Children ^ ' 

2.  Other   Af ter-Born   Heirs '*^" 

CHAPTER  VI. 
The  Transfer  of  Expectancies. 

1.  Release  to  Ancestor ^^ 

2.  Conveyance  to  Third  Persons 46t4 


PART  III. 

The  Probate  of  Wills  and  the  Administration  of  Estates. 

chapter  l 

The  Grant  and  Revocation  of  Probate  and  of  Administration. 

1.  The  Jurisdiction  to  Issue  Letters 494 

2.  The  Necessity  and  Effect  of  Probate  and  of  Administration SO* 

3.  The  Appointment  and  Removal  of  Executors  and  Administrators 521 

4.  The  Revocation  of  Probate  and  of  Administration 533 

CHAPTER  II. 
The  Title  and  Powers  of  Executors  and  Administrators. 

1.  What  Interests  Survive  to  Executors  and  to  Administrators 545 

2.  Time  When  Title  Vests 5G2 

3.  Debts  Due  from  the  Personal  Representative  as  Assets o68 

4.  The  Power  of  Alienation 5(3 


XIV  TABLE  OF  CONTENTS. 


CHAPTER  III. 


gg^jtipQ  The  Payment  of  Debts  of  the  Estate.  p^^gg 

1.  Claims  Against  the  Estate 591 

2.  T&e  Presentation   of  Claims 605 

3.  Priorities   between   Claims 611 

4.  Priorities  of  Creditors  over  Legatees  and  Next  of  Kin 613 

5.  Executors    de   Son    Tort 620 

6.  Refunding   by   Creditors 632 

CHAPTER  IV. 

The  Payment  of  Legacies  and  Distributive  Shares. 

1.  The  Time  of  Payment  of  Legacies  and  Interest,  Dividends  and  Up- 

keep Charges  on  Legacies 637 

2.  The  Abatement  of  Legacies  and  Devises 657 

3.  The  Retainer  and  Refunding  of  Legacies  and  Distributive  Shares...  682 

4.  The  Exoneration  of  Mortgaged  Property 702 

5.  Residuary   Devises   and    Bequests 711 

6.  Advancements  and  the  Ademption  and  Satisfaction  of  Legpcies  and 

Devises    722 

APPENDIX. 
English    Statutes 753 


TABLE  OF  CASES 

[cases  cited  in  footnotes  are  indicated  by  italics,    where  small  capitals 
are  used,  the  case  is  referred  to  in  the  text] 


Page 

Aaron,  Appeal  of 319 

Abrahams,  In  re ^598 

Abrahams  v.  Abrahams 698 

Adams  v.  Crane   652 

Albright  V.  North   120 

Allen  V.   Bromberg 90 

Allen  V.  Dundas 534 

Allen  V.  Griffin  169 

Allen  V.  Haddock  204 

Alvord  V.  Marsh   568 

Ametrano  v.  Downs  '''28 

Anonymous    682 

Armstrong's  Appeal    659 

Attorney  General  v.  Day 400 

Attorney  General  v.  Lloyd 311 

Avery  v.  Everett   444 

Baker's  Appeal    127 

Baldwin  v.  Spriggs 283 

Baldwin's  Will,  In  re  186 

Ballard  v.   Camplin       722 

Balls,  In  re 676 

Banks,  In  re 676 

Banks  v.  Busbridge  676 

Banks  v.  Hoioard  91 

Barker  v.  Comins 55 

Barry  v.  Lambert 588 

Basket  v.  Hassell  90 

Bates  V.  Brown   481 

Baudains  v.  Richardson 35 

Bauerle  v.  Long 603 

Beavan  v.  Went 452 

Beggans'  Will,  In  re 148 

Beyer  v.  Hermann  114 

Beyer  v.  Le  Fevre 40 

Biederman  v.  Seymour 467,  669 

Bigelow  V.  Gillott  268 

Birt's  Goods,  In  re 131 

Blackwood   v.   Darner    116 

Bleckley's  Goods,  In  re 261 

Blight  V.  Hartnoll   715 

Blinn  v.   McDonald    456 

Blundell,  In  re 742 


Page 

Boehm's  Goods,  In  re 65 

Bostwick  V.  Beach 604 

Bower   v.   Daniel    110 

Boyes,  In  re  218 

Boyes  v.  Carritt 218 

Boynton  v.   Hubbard   493 

Bradford  v.  Blossom  115 

Bradshaw  v.  Lancashire  &  Y.  R. 

Co. 549 

Brasier's  Goods,   In  re   256 

Brazier  v.  Hudson 562 

Breslefs  Estate,  In  re  722 

Bridle,  In  re 746 

Brisco   V.   Hamilton    68 

Broderick's  Will,  In  re  514 

Brooks  V.  Woodson 168 

Brook  V.  Warde 229 

Brown  v.  Baxter 517 

Brown  v.  Sackville 116 

Breton  v.  Skirroio 150 

Brown's  Ex'r  v.  Dunn's  Estate. .  610 

Bruce,  In  re  751 

Bryan  v.  Bigelow  222 

Bryan's   Appeal    211 

Buchanan   v.   Pue   689 

Buehler  v.  Glouinger  557 

Buerhaus  v.  De  Saussure  699 

Buffalo  Trust  Co.  v.  Leonard.. ..  683 

Burney  v.  Allen   155 

Burton  v.   Brown    184 

Bushby  v.   Dixon   891 

Bushell's  Goods,  In  re .*..     69 

Butler  V.  Elyton  Land  Co 424 

Cadell  V.  Wilcocks 233 

Cady wold's  Goods,  In  re 287 

Calkins  v.  Calkins  160,  186 

Campbell,  In  re   359,  383 

Campbell  v.  French 309 

Carlton  v.  Carlton   191 

Carleton  ex  dem.  Griffin  v.  Griffin 

203,  339 
Carmichael  v.  Lathrop   734 


Co  ST.  Wills— b 


(XV) 


XVI 


TABLE    OF   CASES. 


Pago 

Carter  v.  Bay   462 

Carter     v.     Manufacturers'     Nat. 

Bank  of  Lewiston  573 

Casson  v.  I>ade 148 

Chamberlain  v.  Williamson   546 

Champion,  In  re 341 

CliampoUion   v.  Corbin    514 

Chase  v.  Fits  5M 

Cheese  v.   Lovejoy   241 

Cheever  v.  North    3S0 

Chidsey  v.  Brookes  513 

Clafliu's   Will,   In  re   134 

Clapp   V.   Tower    397 

Clark   V.   Williams    691 

Collins  V.  Capps  77 

Collins  V.  Elstone 56 

Connecticut  T.  d  8.  Deposit  Co. 

V.  Chase  731 

Cowper  V.  Scott 747 

Cox  V.  Morrow   525 

Crane,  In  re 652 

Cravath  v.  Plympton 591 

Creesy  v.   Willis   708 

Crocker  v.   Crocker   544 

Crosbie  v.  MacDoual 352,  383 

Cross  V.  Long 605 

Crutchley  v.  Wells   656 

Cunningham  v.  Cunningham   ....  155 

Cutlar  V.  Cutlar  480 

Cutting  V.  Tower 559 

Dallinger   v.    Richardson    512 

Danlcy  v.  Jefferson 379 

Davidson  v.  Davidson  37 

Davis  V.   Kirk    468 

Davis  V.  Newman 684 

Davis  V.   Nichols   595 

Davis'  Will,  In  re   102 

Davy  &  Nichols  v.  Smith 147 

Deal  V.    Sexton    475 

Dempsey  v.  Laicson  233 

Dennis  v.  IloUupple 226 

I>enny  v.  Barton  232 

Dcvine  v.  Healy   502 

Dixon  V.  Solicitor  to  the  Treasury  321 

Dobbs  V.  Gullldge 500 

Dodson  V.  Dodson 86 

Doe  ex  dem.  Fei-guson  v.  Hedges  714 
Doe  ex  dom.  Perlvcs  v.  Perkes..  246 
Doe  ex  dom.  Reed  v.  Harris  ....  242 

Doe  ex  deni.   Small   v.   Allen 34 

Doe  ex  dem.  Wl>lte  v.  Barford  ...  272 

Donaldson  v.  Hall 301 

Doncy  v.  Clark 559 

Donnelly's  Estate,  In  re  4.j0 


Pago 

Dowie  V.  Sutton       36 

Dresel  v.  King 397,  720 

Drum  V.  Capps   19 

Dudley  v.  Champion 341 

Dudley  v.  Gates   45 

Dudley   v.   Gates 520 

Dunster,  In  re  721 

Durf ee  v.   Risch    278 

Eaton  V.  Brown 104 

Eccles*  Estate,  In  re 502 

Edgerly  v.  Edgerly   45 

Elliot  V.  Wilson   726 

Ellis  V.  Page 470 

Emernecker's  Estate,  In  re 319 

Emerson  v.  Inchbird 466 

Emery   v.   Berry    620 

Emery  v.  Clough  89 

Emmons'  Will,  In  re 211,  349 

Evans'  Appeal,  In  re 253 

Everhart  v.  Everhart 117 

Ewing  V.  Mallison 498 

Farmers'  Loan  d  Trust  Co.  v.  Mc- 
Carthy      659 

Farr  v.  O'Neall   237,  362 

Fearn  v.  Postlethivaite 200 

Ferguson  v.  Hedges 714 

Ffinch  V.  Combe 258 

Finlay  v.  Chirney 594 

Fleming  v.  Morrison 165 

Flickwir's  Estate,  In  re 650 

Fosselman  v.  Elder 129,  204 

Frazier  v.  Patterson Ill 

French  v.  Vradenburg's  Ex'rs  . . .  662 

Fretwell  V.  McLenore 519. 

Fulton  V.  Andrew  69 

Gay  V.  Gay  249 

Gay  V.  Sanders   496 

Gelbach  v.  Shively   661 

Gerbrich  v.  Freitag 107 

Gibbons  v.  Caunt 274 

Gibson  v.  Nelson 170 

Gifford  V.   Dyer  50 

Giles  V.  Warren  245 

Gilkey  v.  Hamilton  566 

Gill  V.   Gill   246 

Gintcr  v.  Ginter 31 

Glttins  V.  Steele   699 

Glanoy  v.   Glancy 133 

Godfrey  v.  Smith 97 

Godrich  v.  Treat  527 

Gordon  v.  James   661 

Gosnell  v.  Flack  698 


TABLE    OF    CASKS. 


XVll 


Page 

Grattan  v,  Grattan 722 

Green  v.  Tribe 354,  383 

Greville  v.  Browne 673 

Griesel  v.  Jones  520 

Griffin  v.  Griffin   203,  839 

Ouardhoitse  V.  Blackburn 64 

Gump  V.  Gowans 196 

Gurney  v.  Gurney 363 

Hacker  v.  Newborn 37 

BacTcleman  v.  Eackleman 725 

Haddock  v.  Boston  &  M.  R.  Co.. .  504 

Hall  V.  Greene  606 

Hall  V.  Hall 37 

Hall  V.  Perry  19 

Halliwell  v.  Tanner 702 

Hall's  Estate,  In  re 301 

Hanna  v.  Palmer '. . .  620 

Hannis  v.  Packer  202 

Harley  v.  State  10 

Harper  v.  Archer   474 

Harrison  v.  Isaac   718 

Harrisons'  Appeal,  In  re 48 

Harter  v.   Harter 58 

Hartwell  v.  Martin 226 

Haskell  v.  Hanson   604 

Hatcher  v.  Buford 90 

Haven  v.  Foster 341 

Haivknns  v.  Hawkins 195 

fiayes  v.  Moulton  47 

Hays  V.  Jackson   664 

Headrick  v.  McDowell 488 

Heaston  v.  Krieg 84 

Heath  er,  In  re  742 

Hellier  v.  Hellier 238 

Henry  v.  Henry  392 

Hetzel  V.  Hetzel   708 

Higgins  V.  Higgins   464 

Hill  V.  Simpson   577 

Hilpire  v.  Claude 298 

Hilton  V.  Hilton   486,  728 

Hindmarsh  v.  Charlton  166 

Hobart  v.  Holart   143 

Hoths  V.  Knight   248 

Hoffm-an  v.  Hoffman 36 

HofE's  Appeal   703 

Hoitt  V.  Hoitt 295 

Hohnan's  Estate,  In  re 36 

Holt  V.  Libby 697,  748 

Holt's  Will,   In   re 193 

Holyoke  v.  Sipp  185 

Home  of  the  Aged  v.  Bants 271 

Hopkinson  v.  Dumas 403 

Hopkins  v.  Wampler 20 

Horsf ord's  Goods,  In  re 326 


Page 

Houghton  v.  Dickinson   420 

Hovey  v.  Page   545 

Howard  v.  Hunter 262 

Howell  V.  Troutman 33 

Hoy  V.  Hoy 276 

Hudnall  v.  Ham 384 

Hunt,   In  re   706 

Hunt  V.  Evans  348 

Iddings  V.  Iddings 53 

IngersoU  v.  Hopkins 287 

International    Trust    Co.    v.    An- 
thony    174 

Isaac,  In  re 718 

Izard  V.  Hurst 3G1,  742 

Jacobs  V.  Button    731 

Jacques  v.  Swasey    742 

James  v.  Shrimpton 309,  382 

Jenkins  v.  French   594 

Jenks  V.  Hoag   560 

Johnson  v.  Johnson 521 

Jones  V.  Grieser 197 

Jordan's  Appeal  650 

Judge  of  Probate  v.  Chamberlain  524 

Karrer's  Will,   In  re 143 

Kelly  V.  Richardson 660,  671 

Kelsey,    In   re    78 

Kelsey  v.  Kelsey  78 

Kennell  v.  Abbott  33 

Kessinger  v.  Kessinger   46 

Kihlken  v.   Kihlken    461 

King,  In  re  616 

Kissam's  Will,  In  re   254 

Knapen's  Will,  In  re  331 

Lacey  v.  Collins   678 

Lacey  v.  Dohhs   169 

Lancefield  v.  Iggulden  669 

La  Rue  v.  Lee  95,  97 

Laughton  v.  Atkins   315 

Lawford  v.  Bruce   751 

Lemayne  v.  Stanley 117 

Lessing,  Mayer  &  Co.  v.  Vertrees  583 

Lewis  V.  Rutherford 611 

Lindsley  v.  Mclver 725 

Littig  V.  Hance   747 

Locke  V.  James 329 

Locktoood  V.  Lockwood  44 

Lowham's  Estate,  In  re 502 

Lowry  v.  Jackson   459 

Luhrs  V.  Eimer   452 

Lupton  V.  Lupton   683 

Luscomb  V.  Ballard  600 


ivm 


TABLE    OF   CASES. 


Page 


Lyon  V.  Dada  230 

Lyon  V.  Osgood 5G8 

McAllister  v.  Fair 429 

McCabe's  Goods,  In  re 323 

McCauley's  Estate,   In   re   364 

McClure  v.  Raben 488 

McClurc's  Ex'rs  v.  Gamble COO 

McCoy  V.  McCoy  '725 

McGune's  Devisees  v.  Rouse 230 

McElroy  v.  Phink 307 

McEndree  v.  Morgan  688 

McGinley,  Appeal  of   126 

Mclntyre  v.  Mclntyre 323 

Mclntyre  v.  Proctor  530 

Mackay  v.  St.  Mary's  Church  ...  586 

Mackay's  Will,  In  re 141 

Mackin  v.   Haven   453 

McKnlght's  Lessee  v.  Hedges 714 

McLarney's  Estate,  In  re 2S0 

Madden's  Goods,  In  re  129 

Maddison  v.  Gill  . 80 

Maharajah  Pertab   'Narain   Singh 
V.  Maharanee  Suhhao  Kooer  . .  237 

Main  v.  Miner    46 

Main  v.  Kydor  46 

Malen's  Goods,  In  re  132 

Malone's  Adm'r  v.  Ilobbs    262 

Manley's  Ex'r  v.  Staples 20 

Manners  v.  Manners 145 

Marshall  v.  Berry   87 

Marsh  v.  People 532 

Means  v.  Ury  283 

Mears'  Estate,  In  re 536 

Mellor  V.  Smith  Australian  Land 

Mortgage  &  Agency  Co 616 

Meyer's  Estate,  In  re 77 

Middleditch  v.  Williams 30 

Milam  v.  Stanley  94 

M  ilcs'  Appeal   272 

Mitchell  V.  Gard 56 

Mitchell  V.  Smart   563 

Mode  V.  Garson  1S3 

Molineaux  v.  Raynolds 717 

Moniipimny  v.  Dristow 3il 

Moore,    In   re    222 

Moore,  Matter  of   141 

Moore  v.  Alden   68U 

Moore  v.  King   162 

Moore  v.  Moore  9 

Moresby's   Goods,   In    re 316 

Morlsey  v.  Brown  671,  720 

Morrell  v.  Morrell  65 

Morton's   Goods.    In  re    218 

Mullins  V.  Smith  (Joii 


Page 

Murray  v.  Kelly   452 

Murray's  Estate,  In  re   502 

Mutual   Benefit   Life    Ins.   Co.    v. 

Howell 607 

Myers  v.  Vanderbelt   93 

Needham  v.  Borden   193 

NewUn's  Estate,  In  re 320 

Newton  v.  Clarke  150 

Newton  v.  Newton 313,  381 

Newton  v.  Seaman's  Friend  Soci- 
ety      203 

Neio  York  Life  Ins.  Co.  v.  Chitten- 
den      495 

Noon's  Will,  In  re 378 

Norman  v.  Baldry 619 

Noi'th  V.  Graham 388 

Norton  v,  Sewall 560 

O'Brien  v.  Spalding 201 

O'Dell  V.   Goft    30 

O'Donnell's  Estate,  In  re 588 

Oetjen  v.  Oetjen   266 

Olmstead's  Estate,  In  re 254 

Onions  v.  Tyrer  308 

Overpeck's  Will,  In  re 43 

Owen  V.   Crumbaugh   23 

Palmer  v.  Owen   130 

Palmer  v.  Palmer's  Estate 656 

Parfitt  V.  Lawless  31 

Parker  v.  Wells    607 

Parsons  v.  Balson   231 

Patch  V.  White   71 

Payne's  Appeal 592 

Peabody  v.  Cook 405 

Pearce,  In  re 656 

Pearson  v.  Pearson 637 

Peet  V.  Peet 411 

Peirce,    In   re    734 

Pepper's  Estate,  In  re 260 

Perkes  v.  Perkes   246 

Perkins  v.  Ladd   621 

Perkins  v.  Owens 543 

Perkins'  Estate,  In  re 224 

Phillippe  V.  Clevenger 290 

Pickens  v.  Davis   368 

Piercy's  Goods,  In  re 159 

Plate's  Estate,  In  re 119 

Plume  V.  Beale 513 

Plumel's  Estate,  In  re 215,  351 

Porter's  Appeal   102 

Potter  V.  Metropolitan  District  R. 

Co 549 

Powell  V.  Powell   317 


TABLE   OF   CASES. 


X.1X 


Page 

Poicvs  V.  Mansfield 362 

Pulling  V.  Great  Eastern  R.  Co...  552 

Quain's  Appeal 599 

Quinn  V.  Butler 315 

Raikes  v.  Raikes 657 

Rankin's  Heirs  v.  Rankin's  Ex'rs    10 

Rattenberry,   In   re    748 

Ray  V.  Grant '''48 

Raymond  v.  Fitch 547 

Raymond  v.  Wagner 162 

Reed  v.  Harris  242 

Reed  V.  Roberts 151 

Reid's   Goods,   In  re   208,  346 

Rhodes  V.  Rhodes  67 

Rice  V.  Rice  ...'. 'J'lO 

Rich  V.  Gilkey  231 

Richards  v.  Pierce 507 

Richards  v.  Richards  477 

Richardson  v.  Richardson 201 

Riggs  V.  Riggs   160 

Riley  v.  Riley   119,  183 

Ring's  Estate,  In  re 610 

Riordan  v.  Bannon 222 

Rolertson  v.  Broadhent 072 

Robertson's  Estate,  In  re   185 

Rogers  v.  Goodenough 381 

Rohn  V.  Rohn 623 

Rollwagen  v.  Rollwagen  43 

Rose  V.  Cunngnghame 203 

Rozell  V.  Harmon  627 

Rudy  V.  Ulrich 231 

Rutherford,  In  re 641 

Savage's  Goods,  In  re 258 

Sawyer  v.  Sawyer 351 

Saxe  V.  Sase 527 

Schillinger  v.  Baioek  130 

Schofield  V.  Thomas 157 

Schott's  Goods,  In  re 70 

Seabright  v.  Seabright 395 

Seaman's  Estate,  In  re 120 

Security  Co.  v.  Snow   315 

Semine  v.  Semine  533 

Semmes  v.  Semmes 321 

Sharp,  In  re  80 

Sharp  V.  Hall   83 

Shaw  V.  Camp   348 

Shaw's   Estate,   In  re    529 

Shelton's  Will,  In  re 266 

Shepard  v.  Taylor 401 

Shepard  v.  Taylor 404 

Shephard  v.  Rhodes 541 

Shires  v.  Glascock   147 


Fag* 

Shoenberger's  Ex'rs  r.  Lancaster 

Savings  Institution 565 

Simmons  v.  Bollaud  613 

Simpson  v.  Foxou 238 

SMpw^th  V.  Cabell  313 

Slate  V.  Henkle  629 

Slater,  In  re    '<'34 

Slaughter  v.  Heath    13 

Sloan's  Appeal  676 

Small  V.  Allen 34 

Smart's  Goods,  In  re 208,  349 

Smith  V.  Becker 450 

Smith  V.  Henline 47 

Smith's  Goods,  In  re  103 

Smith's  Will,  In  re    43 

Sparhawk  v.  Sparhawk 188 

Sprinkle  v.  Holton  691 

Stagg  V.  Green  562 

Stebbins   v.   Palmer    592 

Steele  v.  Frierson  492 

Steele  v.  Renn 538 

Stellmacher  v.  Bruder 91 

Stetson  v.  Stetson 372 

Stilwell  V.  Mellersh 341 

Stone  v.  Hoskins 109 

Storer's  Will,  In  re  37 

Storer  v.  Zimmerman 37 

Stoutenburgh  v.  Hopkins 9 

Strong's  Appeal    336 

Strong's  Will,  In  re ISO 

Stubbs  V.  Sargon 225 

Sullivan  v.  Sullivan 192 

Sutherland  v.  Brush 588 

Swan  v.  Hammond  276 

Swire's  Estate,  In  re 126 

Sioygart  v.  Willard   22 

Taylor  v.   Hawkins    582 

Thayer  v.  Paulding 654 

Thomas  v.  Chamberlain 609 

Thomas  v.  Eoivell  313 

Thomas  v.  Thomas'  Estate 423 

Tillinghast,  In  re   731 

Tilton  V.  American  Bible  Society    70 

Tindall's  Ex'rs  v.  Tindall    711 

Tolman  v.  Tolman 747 

Touart  v.  Rickert 510 

Tousey's  Will,  In  re 334 

Tovm  of  Pawtwcket  v.  Ballou 150 

Townsend  v.  Moore   236 

Townshend  v.  Howard 253 

Trinitarian  Congregational  Church 
■and  Society  of  Castine,  In  re. .  191 

Truro's  Goods,  In  re 207,  342 

Tucker  v.  Whaley 602 


XX 


TABLE   OF  CASES. 


Page 

Tunno,  In  re 657 

Tupper  V.  Tupper   313 

Turner  v.  Laird 709 

Tussand,  In  re T50 

Tyler  V.  Tallman  676 

Tyler  v.  Tjler   275 

Tyner's  Estate.   In  re   38 

Tyner  v.  Tarian 38 

Underhill,  Matter  of 688 

Van  Eouten  v.  Post 741 

Varnon  v.  Vamon 310 

Vernon  v.  Vernon  146 

Vines'  Estate,  In  re 107 

"Wagner  v.  Varner 419 

Waite  V.  Frisbie 51 

Waite  V.  Frishie   120 

Walcott  V.  Ochterlony 236 

Walker  V.  FolletVs  Estate 676 

Walker's  Estate,  In  re   174 

Walton's  Estate,  In  re 302 

Ward  V.  Board  of  Com'rs   509 

Warden's  Estate,  In  re 408 

Wardner     v.     Baptist     Memorial 

Board    236 

Warner  v.  Beach 294 

Waters  v.  Waters  48 

Watts'  Estate,  In  re   676 

Welch  V.  Adams 638 

Welchman  v.  Sturgis 505 


Page 

Wellner  v.  Eckstein  426 

Welsh  V.  Brown 645 

West,  In  re  699 

West  V.  Roberts 699 

Whitcomt)  V.  Whitcomh  31 

WTiite  V.  Barf ord   272 

White  V.  Casten 245 

White  V.  Trustees  of  British  lMu- 

seum 133 

White  V.  Barford 272 

Wilkinson  v.  Joughin 31 

Willbor,  In  re 396 

WMlletts,  Appeal  of 510 

Williams  v.  Goodtitle 340 

Williams  v.  Williams 382 

Williams  v.  Wilson 10 

Wilson  V.  Mitchell  .'. 19 

Wingrove  v.  Wingrove 34 

Winslow  V.  Kimball  192 

Wolf  V.  Beaird  632 

Woodbury's  Estate,  In  re 682 

Woodfill  V.  Patton 254 

Woodruff  V.  H.  B.  Claflin  Co....  636 

Wood's  Appeal 577 

Woodward,  Appeal  of 421 

Woodvxird's  Estate,  In  re 641 

Woodward's  Goods,  In  re 266 

Woolley  V.  Kelsey  78 

Wyckoff  V.  Perrine's  Ex'rs   656 

Wyman  v.  Wyman 552 

Zeph's  Estate,  In  re 494 

ZoUickoffer  v.  Seth 692 


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CASES  ON  WILLS,  DESCENT 
AND  ADMINISTRATION 


PART  I 

LAST  WILLS  AND  TESTAMENTS 


CHAPTER  I 
DEFINITIONS 


PAGE'S  DEFINITIONS 

"WilV'—'^ht  word  "will,"  in  the  popular  meaning  of  the  term,  is 
a  disposition,  made  by  a  competent  testator  in  the  form  prescribed  by 
law,  of  property  over  which  he  has  legal  power  of  disposition,  which 
disposition  is  of  such  nature  as  to  take  effect  at  the  death  of  the  testa- 
tor.^ 

1  "A  more  generally  received  definition  is  as  follows:  'A  will  is  an  instru- 
ment by  which  a  person  makes  a  disposition  of  his  property  to  take  effect  after 
his  decease,  and  which  is,  in  its  own  nature,  ambulatory  and  revocable  during 
his  life.'  1  Jsirman  on  Wills,  p.  *18.  This  definition  is  inadequate.  It  describes 
some  wills,  and  wills  with  which  books  on  that  subject  commonly  deal.  But 
it  does  not  describe  all  wills.  A  will  is  not  always  an  instrument ;  it  may  be 
oral  or  nuncupative.  A  will  may  make  no  disposition  of  property.  An  instru- 
ment, duly  executed,  and  which  merely  appoints  an  executor,  without  direc- 
tions as  to  what  he  shall  do,  is  a  valid  will,  as  is  also  an  instrument  by  which 
a  father  appoints  a  guardian  for  his  minor  child,  the  appointment  to  take  ef- 
fect upon  the  death  of  the  father."    Gardner  on  Wills,  p.  2. 

But  a  so-called  will,  even  though  it  is  admitted  to  probate,  may  be  one  only 
by  courtesy.  Compare  the  case  where  the  executor  and  everybody  provided  for 
In  the  will  predeceased  the  maker  of  the  will,  where  the  will  was  admitted 
to  probate,  and  yet  where  the  so-called  testator  was  held  to  have  died  "intes- 
tate" within  the  meaning  of  an  act  giving  an  intestate's  widow  £500  out  of  his 
estate.     In  re  Cuffe,  [1908]  2  Ch.  500. 

On  the  validity  of  a  will  making  no  disposition  of  property,  see  89  Am.  St 
Rep.  48T,  note. 

COST.WlIXS. — \ 


2  LAST   WILLS   AND    TESTAMENTS.  (Part  1 

In  its  technical  and  historical  sense,  however,  a  "will"  is  an  instru- 
ment of  the  type  described  which  disposes  of  realty  only. 

"Testament." — An  instrument  which  disposes  of  personalty  only  is 
called  a  "testament,"  and  an  instrument  disposing  of  both  realty  and 
personalty  is  known  as  a  "will  and  testament." 

The  popular  meaning  of  "will"  has  so  far  encroached  upon  the  tech- 
nical meaning  that  "will"  is  used  indiscriminately  of  instruments  pass- 
ing realty  or  personalty  or  both.  "Testament,"  however,  is  almost 
never  used  of  an  instrument  passing  realty  only. 

"Testator." — The  word  "testator"  is  very  commonly  used  of  the 
person  making  either  a  will  or  a  testament. 

"Devisor." — "Devisor"  is,  according  to  derivation,  the  correct  term 
for  one  who  makes  a  will,  but,  while  used,  is  not  common. 

"Devisee,"  on  the  other  hand,  is  the  word  regularly  used  to  denote 
one  to  whom  realty  passes  by  will. 

"Legatee,"  is  properly  used  to  denote  one  to  whom  personalty  passes 
by  will. 

"Legatee"  and  "devisee"  are  frequently  interchanged  in  popular 
usage,  however. 

"Devise"  and  "bequeath." — Of  the  verbs  used  to  denote  the  act  of 
making  a  will,  "devise"  is  properly  used  of  realty,  and  "bequeath"  of 
personalty. 

"Devise." — Of  the  nouns  used  to  name  the  various  forms  of  gift, 
"devise"  is  used  of  a  gift  of  realty. 

"Legacy." — "Legacy"  is  used  as  a  gift  of  a  sum  of  money. 

"Bequest." — "Bequest"  is  used  of  a  gift  of  personalty  in  general. 

None  of  these  words  have  so  fixed  a  legal  meaning,  however,  that  a 
gift  will  fail  because  testator  does  not  use  the  words  descriptive  of  the 
gift  or  the  act  of  giving  with  technical  accuracy. 

A  "devise"  is  often  miscalled  a  "bequest,"  or  "bequest"  is  often  used 
to  include  both  realty  and  personalty,  or  is  used  of  a  gift  of  money 
alone. 

So  the  verb  "devise"  is  often  used  to  refer  to  personalty  alone. 

Page  on  Wills,  §  2. 


Ch.  2)       HISTORY  OP  THE  LAW  OF  WILL3  AND  OP  TESTAMENTS.  3 

CHAPTER  II 
HISTORY  OF  THE  LAW  OF  WILLS  AND  OF  TESTAMENTS 


LEAKE  ON  DISPOSITION  BY  WILL 

Land  Not  Devisable  at  Common  Law,  Except  by  Special  Cus- 
tom.— The  feudal  principles  of  the  common  law  did  not  admit  of  a 
disposition  by  will  of  land  of  freehold  tenure.  Upon  the  death  of  the 
tenant  his  heir  was  originally  entitled  by  the  terms  of  the  grant;  and 
though  afterwards  the  title  of  the  heir  became  liable  to  be  defeated  by 
an  alienation  of  the  ancestor  during  life,  it  was  never  defeasible  at 
common  law  by  a  devise  or  testamentary  disposition  at  death.  Land 
was  devisable  by  will  in  some  places  by  special  custom,  as  lands  of 
gavelkind  tenure  in  the  county  of  Kent,  land  in  the  city  of  London, 
and  in  some  boroughs,  which  customs  are  supposed  to  be  relics  of  the 
earlier  and  prse-feudal  common  law. 

Uses  in  Equity  Devisable,  Until  the  Statutes  o^  Uses. — Under 
the  system  of  uses,  to  be  noticed  presently,  the  use  or  beneficial  inter- 
est in  the  land,  as  recognized  in  the  Court  of  Chancery,  became  dis- 
posable by  will;  and  a  testamentary  disposition  of  land  might  be  ef- 
fected by  conveying  it  to  be  held  to  the  uses  to  be  declared  by  will. 
The  Statute  of  Uses,  27  Hen.  VIII  [1535],  by  the  conversion  of  uses 
into  legal  estates,  took  away  this  capacity  of  testamentary  disposi- 
tion ;  but,  probably  for  that  reason,  it  was  soon  followed  by  the  Stat- 
utes of  Wills,  conferring  a  direct  testamentary  power  over  the  legal 
estate. 

Statutes  of  Wills.— These  statutes,  32  Hen.  VIII  [1540]  c.  1,  and 
34  &  35  Hen.  VIH  [1542]  c.  5,  empowered  a  tenant  in  fee  simple  to 
give,  dispose,  will,  or  devise  to  any  person  or  persons,  by  his  last  will 
and  testament  in  writing,  all  his  manors,  lands,  tenements,  rents,  and 
hereditaments,  or  any  of  them,  "at  his  own  free  will  and  pleasure." 
The  power  was  expressly  restricted,  as  to  lands  held  by  the  tenure  of 
knight's  service,  to  the  extent  of  two-thirds  of  such  lands  only.  But 
the  statute,  12  Car.  II  [1660]  c.  24,  which  afterwards  converted  the 
tenure  of  knight  service  into  socage  tenure,  abolished  this  restriction, 
and  rendered  all  lands  of  freehold  tenure  uniformly  disposable  by  will. 
Statute  of  Frauds,  as  to  the  Form  of  Wills. — The  Statute  of 
Frauds,  29  Car.  II  [1676]  c.  3,  '§  5,  further  regulated  the  form  of 
wills  of  lands,  by  enacting  (section  5)  "that  all  devises  and  bequests 
of  any  lands  or  tenements  devisable  either  by  force  of  the  Statute  of 
Wills,  or  by  this  statute,  or  b}i  force  of  the  custom  of  Kent,  or  the 
custom  of  any  borough,  or  any  other  particular  custom,  shall  be  in 
writing,  and  signed  by  the  party  so  devising  the  same,  or  by  some 


4.  LAST  WILLS   AND   TESTAMENTS.  (Part  1 

Other  person  in  his  presence  and  by  his  express  directions,  and  shall 
be  attested  and  subscribed  in  the  presence  of  the  said  devisor  by  three 
or  four  credible  witnesses,  or  else  they  shall  be  utterly  void  and  of  none 
effect."  Section  6  prescribed  the  modes  by  which  devises  might  be  re- 
voked. 

The  Wills  Act  (1  Vict.  [1837]  c.  26).— The  above  enactments 
were  all  repealed  by  the  last  Wills  Act,  7  Wm.  IV  &  1  Vict.  [1837]  c. 
26,  §  2,  except  as  to  wills -made  before  1838  (section  34)  ;  and  under 
this  statute  the  power  to  dispose  of  real  estate  by  will  now  subsists, 
and  the  mode  of  exercising  it  is  regulated. 

Disposition  by  Wili^-How  Far  Subject  to  the  Rules  of  th^ 
Common  Law.— A  disposition  by  will,  equally  with  a  disposition  by 
deed,  is  subject  to  the  general  rules  of  the  common  law  regulating  the 
estates  or  interests  which  may  be  given.  A  testator  can  only  devise 
such  estates  as  are  known  to  the  law,  nor  can  he  alter  or  take  away  the 
legal  incidents  and  qualities  of  such  estates;  for  instance,  he  cannot 
render  estates  of  inheritance  inalienable,  nor  alter  the  law  of  inheri- 
tance. 

How  Far  Independent  of  Rules  of  Law. — But  the  power  of  dis- 
position by  will,  being  derived  directly  from  the  statute,  is  for  the 
most  part  independent  of  the  restrictions  imposed  by  the  peculiar  feu- 
dal doctrines  of  the  common  law,  and  by  the  common-law  forms  of 
conveyance.  Devises  of  freehold  estates  were  operative  without  livery 
of  seisin,  and  without  attornment,  before  these  formalities  were  dis- 
pensed with  by  statute. 

Devises  of  Future  Estates. — Devises  of  freehold  estates  may  be 
made  to  take  effect  in  futuro,  at  a  future  date  or  upon  any  specified 
event,  leaving  the  inheritance  in  the  meantime  to  descend  to  the  heir, 
or  such  devises  may  be  made  to  take  effect  in  defeasance  of  and  in 
substitution  for  preceding  devises,  although  such  limitations  of  estates 
are  contrary  to  the  rules  of  the  common  law,  which  admit  no  future 
limitations  or  substitutions  of  the  tenancy,  except  by  way  of  re- 
mainders. These  future  devises  are  analogous  to  the  springing  and 
shifting  uses  which  became  legal  limitations  under  the  Statute  of 
Uses,  and  they  are  called  distinctively  executory  devises. 

Leake's  Digest  of  the  Law  of  Property  in  Land  (1st  Ed.)  pt.  I, 
chap.  1,  section  IV,  §  2,  pp.  66-69. 


DIGBY  ON  THE  HISTORY  OF  THE  LAW  OF  WILLS  OF 

LAND 

It  has  been  seen  that  one  of  the  most  marked  effects  of  the  growth 
of  feudalism  was  the  abolition,  except  in  certain  localities,  of  the  prac- 
tice of  devising  interests  in  lands  by  will.  Such  a  disposition  would 
have  defeated  the  most  valuable  rights  of  the  lord — relief,  wardship. 


Ch.  2)        HI8TOET  or  THE  LAW  OF  WILLS  AND  OF  TESTAMENTS.  6 

and  marriagfe.  It  was  therefore  wholly  inconsistent  with  feudal  the- 
ories. In  a  great  many  boroughs,  and  in  gavelkind  lands,  local  cus- 
toms were  sufficiently  strong  to  preserve  the  ancient  liberty  of  disposi- 
tion by  will,  and  cases  relating  to  "burgages  devisable"  are  common  in 
the  Year  Books. 

It  has  also  been  seen  how  the  practice  of  disposing  of  uses  of  land 
by  will  became  prevalent  under  the  protection  and  encouragement  of 
the  Chancellors.  One  of  the  earliest  of  the  recorded  cases  on  this 
branch  of  the  law  contains  a  disposition  by  will,  or  rather  perhaps 
settlement,  of  the  use  of  lands  made  in  the  sixth  year  of  Richard  II. 
Except,  therefore,  in  the  case  of  burgages  devisable,  a  devise,  before 
the  legislation  presently  to  be  noticed,  was  simply  a  declaration  by  the 
legal  tenant  of  the  uses  to  which  his  heir  at  his  death  should  hold  the 
lands,  or  of  the  uses  to  which  he  had  conveyed  the  lands  to  feoffees 
(such  conveyance  having  been  expressed  to  be  to  the  use  of  his  will), 
or  else  a  disposition  of  a  use  which  had  already  been  created  in  favor 
of  himself. 

In  order,  therefore,  that  the  devisee  of  the  use  might  enforce  the 
disposition  of  the  will,  the  aid  of  the  Chancellor  was  called  in.  The 
Chancellor  could  compel,  if  necessary,  the  tenant  of  the  legal  estate 
to  convey  the  land  devised  to  cestui  que  use,  the  devisee. 

It  appears  from  the  title  and  preamble  of  the  Statute  of  Uses  that 
one  of  its  principal  objects  was  to  abolish  the  power  of  disposing  of 
interests  in  lands  by  will,  and  thereby  to  restore  to  the  king  and  the 
great  lords  the  feudal  dues  which  they  could  not  claim  if  the  estate 
of  the  heir  were  defeated  by  a  devise. 

The  Statute  of  Uses  contained  a  saving  in  favor  of  wills  made  before 
the  1st  day  of  May,  1536,  the  year  following  that  of  the  passing  of  the 
statute.  Between  that  time  and  July  20,  1540,  the  power  of  testation 
was,  as  regards  freehold  interests  in  lands,  wholly  abolished,  except 
in  the  localities  mentioned  above.  It  may,  however,  be  well  believed 
that  it  was  impossible  for  the  legislature,  arbitrary  and  thorough-going 
as  it  was,  to  maintain  a  restriction  so  opposed  to  the  habits  and  prac- 
tices which  had  prevailed  throughout  the  country  ever  since  uses  had 
been  understood  and  protected  by  the  Chancellor.  Accordingly,  in  the 
thirty-second  year  of  Henry  VIII  (1540),  it  was  found  necessary  to 
restore  a  large  measure  of  the  power  of  devising  interests  in  lands. 
The  provisions  of  the  Statute  32  Henry  VIII,  c.  1,  are  somewhat  com- 
plicated ;  but  the  upshot  of  them  is  that  power  is  given  to  every  tenant 
in  fee  simple  to  dispose  of  all  his  lands  held  by  socage  tenure,  and  of 
two-thirds  of  his  lands  held  by  knight-service.  Careful  provision  is 
made  by  this  statute  for  the  saving  of  primer  seisins,  reliefs,  and  fines 
on  alienation,  in  the  case  of  socage  lands,  and  of  the  rights  of  ward- 
ship over  the  third  part  of  knight-service  lands,  in  favor  of  the  king  or 
other  lord. 

When  by  the  act  for  the  abolition  of  military  tenures,  tenure  by 
knight-service  was  converted  into  free  and  common  socage,  the  power 


6  LAST   WILLS   AND    TESTAMENTS.  (Part  1 

of  devise  granted  by  the  Statutes  of  Henry  VIII  extended  to  the  whole 
of  the  lands  of  which  previously  only  two  parts  had  been  devisable. 
Digby's  History  of  the  Law  of  Real  Property  (5th  Ed.)  377-379. 


PAGE  ON  THE  HISTORY  OF  TESTAMENTS  OF  PERSONAL 

PROPERTY 

§  17.  Testaments  in  Pre-Norman  Times. — The  testament  passing 
personal  property  has  a  less  complicated  history. 

In  pre-Norman  times  the  power  to  dispose  of  personal  property  by 
testament  was  firmly  established.  It  is  not  clear  whether  this  power 
applied  to  the  whole  of  testator's  personal  property,  or  to  a  part  only. 

§  18.  Doctrine  of  Reasonable  Parts. — By  Glanvil's  time  (A.  D. 
1187)  it  was  settled  that  the  power  of  disposing  of  personal  property 
by  testament  had  limits  in  some  cases.  If  the  testator  left  neither 
wife  nor  children,  he  could  dispose  of  all  of  his  personal  property  by 
testament;  but  if  he  left  either  wife  or  children,  he  could  dispose  of 
one-half  of  his  personal  property  by  testament,  the  other  half  going 
to  the  surviving  wife  or  children,  as  the  case  might  be;  while  if  he 
left  both  wife  and  children,  he  could  dispose  of  but  a  third  of  his  per- 
sonal property  (known  as  the  "dead's  part").  One-third  of  his  per- 
sonal property  (known  as  the  "wife's  part")  went  to  his  wife;  the 
remaining  third  (known  as  "child's  part"  or  "bairn's  part")  going  to 
the  children. 

There  has  been  some  dispute  whether  the  rules  above  stated  were 
the  common  law  of  England  or  only  local  customs.  The  weight  of 
authority  is  that  they  were  the  cohimon  law  of  England,  and  were  in 
force  in  Glanvil's  day  over  the  whole  of  England. 

§  19.  Power  of  Testator  to  Dispose  of  His  Entire  Personal 
Property. — This  rule  ceased  to  be  the  law  in  a  great  part  of  Eng- 
land so  gradually  that  Blackstone  says  that  it  is  impossible  to  trace 
out  when  first  this  alteration  began,  and  so  thoroughly  that  it  was 
possible  with  some  show  of  truth  to  deny  that  it  ever  had  been  the 
law.  It  was  established  by  the  reign  of  Charles  I  (1625-1649)  that 
the  general  rule  in  England  was  that  testator  could  dispose  by  testa- 
ment of  any  or  all  of  his  personal  property,  except  where  the  relics 
of  the  old  law  still  lingered,  under  the  name  of  local  custom,  as  in 
Yorkshire  and  London.  These  so-called  local  customs  were  one  by 
one  uprooted  by  Parliament  in  a  series  of  repealing  statutes,  and  final- 
ly the  general  statute,  1  Vict.  c.  26  (1837),  gave  the  testator  the  general 
power  of  disposing  of  the  whole  of  his  personal  property. 

§  157.  History  of  the  Law  of  the  Extrinsic  Elements  of 
Wills. —  *  *  *  Testaments  were  governed  by  the  ecclesias- 
ticallaw.  Originally  the  ecclesiastical  courts  enforced*  even  the  oral 
wishes  of  the  decedent;  but  in  course  of  time  oral  wishes  were  enforced 


Ch.  2)       HISTORY  OF  THE  LAW  OF  WILLS  AND  OF  TESTAMENTS.  7 

only  in  certain  specified  cases.  The  testament,  except  in  the  cases  where 
a  nuncupative  will  was  enforced,  was  required  to  be  in  writing.  No 
further  formalities  were  required.  If  testator  assented  to  the  instru- 
ment, it  was  not  necessary  that  he  sign  it,  or  that  it  be  subscribed  by 
attesting  witnesses.  It  was  not  necessary  that  the  testament  be  a 
holograph ;  that  is,  in  testator's  handwriting.  An  unsigned  paper,  not 
in  testator's  handwriting,  and  not  signed  by  him,  could  be  probated  as 
his  testament,  if  the  evidence  showed  that  he  intended  it  as  his  testa- 
ment. 

The  Statute  of  Frauds,  already  quoted,  did  not  affect  testaments. 
The  danger  of  fraud,  in  the  informal  instruments  which  were  upheld 
by  the  courts,  became  so  evident  that  statutes  were  passed  in  England 
in  the  first  half  of  the  nineteenth  century  (1  Vict.  c.  26,  sec.^  9),  and 
in  the  different  states  of  this  country  at  different  dates,  imposing  upon 
testaments  of  personalty  substantially  the  formalities  required  to  a 
will  of  lands.^  The  original  freedom  of  wills  and  testaments  from 
set  formalities  persisted  longer  as  to  testaments  of  personalty  than  as 
to  wills  of  realty.  Indeed,  in  some  jurisdictions  testaments  of  person- 
alty are  still  less  formal  instruments  than  wills. 

Page  on  Wills,  §§  17,  18,  19,  157. 


PAGE  ON  WILLS  AND   TESTAMENTS   IN  THE  UNITED 

STATES 

§  20.  History  of  the  Law  of  Wills  and  Testaments  in  the 
United  States. — The  English  colonists  who  settled  the  Atlantic  coast 
of  what  is  now  the  United  States  in  the  seventeenth  century  brought 
with  them  the  common  law  of  England  as  modified  by  the  Statute  of 
Wills.  Accordingly,  where  not  expressly  limited  by  local  statute,  the 
power  of  a  testator  to  dispose  of  his  realty,  as  well  as  his  personalty, 
by  last  will  and  testament,  has  always  been  recognized  in  the  courts  of 
the  United  States.  Not  only  was  American  law  from  the  first  held 
to  be  modified  by  the  Statute  of  Wills,  but  the  feudal  system  was  never 
generally  held  to  be  a  part  of  our  law  as  being  unsuited  to  our  insti- 
tutions. The  law  of  wills  in  the  United  States  is  thus  based  upon 
English  law,  and  continuous  with  it  in  such  states  as  were  founded  by 
the  English. 

1  "In  England,  prior  to  the  statute  of  Victoria,  wills  of  personal  estate  were 
not  required  to  be  attested  or  signed  by  the  testator,  and  drafts  of  wills,  or 
written  memoranda,  made  by  or  for  the  testator,  were  admitted  to  probate  in 
the  ecclesiastical  courts  as  valid  written  wills,  not  nuncupative.  By  that  stat- 
ute, and  by  statutes  in  the  various  states  of  the  Union,  wills  of  real  and  per- 
sonal property  were  placed  on  the  same  footing  as  regards  the  formalities  of 
their  execution  and  attestation."  1  Underbill  on  the  Law  of  Wills,  §  175,  p. 
241,  note  5. 


8  LAST   WILLS   AND   TESTAMENTS.  (Part  1 

In  the  South  and  West  of  the  United  States,  however,  the  original 
European  stock  was  not  English,  but  French  and  Spanish.  In  these 
sections,  therefore,  marked  traces  of  Roman  law,  as  modified  by  the 
French  and  Spanish,  are  to  be  found.  Louisiana  has  put  into  statutory 
form  the  French  law,  which  in  turn  was  based  upon  the  Roman.  In 
California  and  some  of  the  territories  adjoining  on  the  southeast  the 
law  of  wills  is  in  part  of  Spanish  origin.  From  these  states  statutes 
have  been  adopted  in  some  other  states. 

The  net  result  may  be  said  to  be  that  in  the  greater  part  of  the 
United  States  the  law  of  wills  is  of  pure  English  origin,  modified  by 
modem  statutes,  showing  some  influence  of  Spanish  and  French  law 
in  some  of  the  Southern  and  Western  states;  while  in  Louisiana  the 
law  of  wills  is  of  French-Roman  origin,  gradually  yielding  in  some 
respect  to  the  influence  of  the  remaining  common-law  states. 

Page  on  Wills,  §  20. 


Ch.3)  TESTAMENTARY   CAPACITY   AMD   INTENT, 

CHAPTER  III 
TESTAMENTARY  CAPACITY  AND  INTENT 


SECTION  1,— INFANCY 


"And  be  it  further  enacted  that  no  will  made  by  any  person  under 
the  age  of  twenty-one  years  shall  be  valid."— Wills  Act,  7  Wm.  IV  & 
1  Vict,  c  26,  §  7  (1837). 

"It  is  not  questioned  that,  by  the  Act  of  1840,  a  person  under  the 
age  of  twenty-one,  is  incapable  of  making  a  will.  Hartley's  Dig.  art. 
3252.  If,  therefore,  the  testator  was  a  minor,  as  alleged,  the  will  was 
void  for  the  want  of  capacity  to  make  it."— Wheeler,  C.  J.,  in  Moore 
V.  Moore,  23  Tex.  637,  638  (1859).^ 


SECTION  2.— COVERTURE 


"At  common  law,  a  married  woman  could  not  devise  real  estate,  and 
was  incapable  of  disposing  of  her  chattels  by  will,  without  the  consent 
of  her  husband."— Stoutenburgh  v.  Hopkins,  43  N.  J.  Eq.  577,  579,  12 
Atl.  689,  690  (1887).* 

1  "Lord  Coke  [C5o.  LIL  89b.  note  83]  lays  It  down  as  an  established  rule  of 
the  common  law  that  an  Infant  of  eighteen  may  execute  a  valid  will  of  per- 
sonalty, though  no  infant  under  the  age  of  twenty-one  had  capacity  to  devise 
lands.  [See  St.  34  &  35  Hen.  VIII,  c.  5,  f  14.]  But  the  rules  which  were  recog- 
nized in  the  English  eoclesiastlcal  courts,  where  wills  of  personal  property 
were  probated,  were  different.  The  rule  of  the  civil  law  that  infants  who  had 
attained  the  ace  of  fourteen,  if  males,  and  twelve,  if  females,  had  capacity  to 
execute  wills  of  personal  property,  was  adopted  in  these  courts.  The  judgment 
of  the  probate  court  admitting  the  will  to  probate  being  conclusive  as  to  the 
capacity  of  the  testator,  the  rule  of  the  civil  law  was  agreed  to,  if  not  affirmed, 
by  the  courts  of  common  law  and  In  the  Jurisdiction  of  the  chancellor."  1  Un- 
derhill  on  the  Law  of  Wills,  170,  S  120.    Ix)cal  statutes  should  be  consulted. 

2  On  the  effect  of  coverture  on  testamentary  capacity  at  common  law,  see 
1  Jarman  on  Wills,  »39-^2,  and  57  Am.  Dec.  340-349,  note.  Local  statutes 
should  be  consulted.  On  the  right  of  a  wife,  under  a  statute  removing  the  dis- 
abilities of  married  women,  to  devise  property  held  by  her  husband  and  her- 
self as  joint  tenants,  see  7  L.  R.  A.  (N.  S.)  701,  note.  As  late  as  1899  the  Idaho 
statutes  were  construed  to  empower  married  women  to  make  witnessed  wills, 
but  not  unwitnessed  holographic  vrills.  Scott  v.  Harkness,  6  Idaho,  736,  59 
Pao.  656  (1899). 


10  LAST    WILLS   AND   TESTAMENTS.  (Part  1 

SECTION  3.— ALIENAGE 


"Aliens  are  capable  of  acquiring,  holding,  and  transmitting  movable 
property,  in  like  manner  as  our  own  citizens,  and  they  can  bring  suits 
for  the  recovery  and  protection  of  that  property." — 2  Kent's  Com.  *62. 

"Johnson  could  and  did,  although  an  alien,  acquire  an  estate  in  fee 
in  the  lots,  by  the  conveyances  of  White  and  McDowell,  subject  only 
to  be  divested  by  the  government  upon  office  found.    *    *    * 

"Aliens,  in  by  purchase,  must  be  deemed  citizens  in  any  controversy 
with  other  citizens.  It  is  the  sovereign  power  only  where  the  real 
estate  is  situated  that  has  the  right  to  disturb  the  alien  in  his  title  and 
possession ;  it  is  a  mere  matter  of  policy  that  the  government  may  oust 
him,  pertaining  solely  to  the  state,  over  which  the  citizen  has  not,  nor 
ought  he  to  have,  any  control. 

"Whatever  title  Johnson  acquired  to  the  lots  by  purchase,  the  bet- 
ter opinion  seems  to  be  he  could  convey  by  deed  or  will,  and  that  his 
devisees  took  the  same  estate  he  had." 

Catron,  J.,  in  Williams  v.  Wilson,  Mart.  &  Y.  (Tenn.)  248,  253, 
254  (1827).» 


SECTION  4.— CONVICTION  OF  CRIME 


RANKIN'S  HEIRS  v.  RANKIN'S  EX'RS. 

(Court  of  Appeals  of  Kentucky,  1828.    6  T.  B.  Mon.  531,  17  Am.  Dec.  IGl.) 

Owsley,  J.*  Reuben  Rankin  was  charged  with  the  murder  of 
John  Blake,  and  was  indicted  for  the  offense,  put  upon  his  trial,  found 
guilty  by  the  verdict  of  a  jury,  and  sentenced  to  be  hung  by  the  judg- 
ment of  the  court. 

Between  the  time  when  the  sentence  of  condemnation  was  pro- 
nounced, and  the  period  fixed  by  the  court  for  his  execution,  Rankin 

«  See  1  Jarman  on  Wills,  •44. 

"An  alien  may  acquire  lands  by  purchase,  but  not  by  descent;  and  there  is 
no  distinction,  whether  tlie  purchase  be  by  grant  or  by  devise.  In  either 
event,  tlie  estate  vests  in  the  alien  as  a  defeasible  estate,  subject  to  escheat 
at  the  suit  of  the  goveninient.  He  has  complete  dominion  over  the  estate  of 
which  he  Is  thus  seized,  until  oflice  found.  ♦  ♦  *  The  ancient  rule  of  the 
common  law  was  that  an  alien  could  not  maintain  a  real  action  for  the  recov- 
ery of  lands,  but  he  might,  in  such  action,  defend  his  title  against  all  persons 
but  the  sovereign.  It  has  been  held,  however,  in  North  Carolina,  if  not  in 
other  states  of  the  Union,  that  he  may  maintain  ejectment."  Judge,  J.,  in 
Ilarley  v.  State,  40  Ala.  GSO,  C9.j  (18G7). 

*  Part  of  the  opinion  is  omitted. 


Ch.  3)  TESTAMENTARY    CAPACITY    AND   INTENT.  11 

departed  this  life,  having  previous  to  his  death,  but  after  sentence,  in 
due  and  legal  form,  made  and  published  his  last  v^ill  and  testament  in 
writing,  by  which  he  disposed  of  all  his  estate.  The  will  was  after- 
ward presented  to  the  county  court  of  Bourbon  for  probate,  by  the 
executors  therein  named,  and,  though  contested  by  the  heirs  of  Rankin, 
it  was  proved  and  admitted  to  record. 

The  heirs,  being  dissatisfied  with  the  decision  of  the  county  court, 
have  brought  the  case  before  this  court  for  revision.  . 

The  execution  of  the  will,  by  the  testator,  in  legal  form,  is  not  con- 
tested by  the  heirs,  nor  do  they  pretend  that  he  was  not,  at  the  date 
of  the  will,  of  sane  mind;  but  it  is  argued  by  their  counsel  that  after 
the  testator  was  convicted  of  the  murder  charged  against  him  he  was 

civUiter  mortuus,  and  therefore  incapable  of  making  a  valid  will. 
*     *     * 

In  England,  where  attainder  or  conviction  of  felony  works,  not  only 
corruption  of  blood,  but  also  a  forfeiture  of  the  lands  and  goods  of 
the  offender,  authority  is  not  wanting  to  prove  the  incompetency  of  the 
attainted  or  convicted  person  to  make  a  will;  but,  upon  adverting  to 
those  authorities,  it  will  be  found  that  the  incompetency  of  the  at- 
tainted or  convicted  person  to  do  so  results  exclusively  from  the  for- 
feiture, which  by  the  laws  of  that  country  follows  the  attainder,  or 
conviction,  as  an  inseparable  consequence,  and  from  the  incapacity  of 
the  person  attainted,  or  convicted,  afterwards  to  hold  any  estate  except 
for  the  use  and  benefit  of  the  king. 

Thus  in  Shepherd's  Touchstone,  p.  404,  it  is  said :  "A  traitor  at- 
tainted from  the  time  of  a  treason  committed,  can  make  no  testament 
of  his  lands  or  goods,  for  they  are  all  forfeited  to  the  king,  but  after 
the  time  he  hath  a  pardon  from  the  king  for  his  offenses,  he  may  make 
a  testament  of  his  lands  or  goods  as  another  man.  A  man  that  is  at- 
tainted, or  convicted  of  felony,  cannot  make  a  testament  of  his  lands 
or  goods,  for  they  are  forfeited ;  but  if  a  man  be  only  indicted,  and 
die  before  attainder,  his  testament  is  good  for  his  lands  and  goods 
both.  And  if  he  be  indicted,  and  will  not  answer  upon  his  arraign- 
ment, but  standeth  mute,  etc.,  in  this  case,  his  lands  are  not  forfeited, 
and  therefore  it  seems  he  may  make  a  testament  of  them." 

The  same  doctrine  is  to  be  found  in  Swinb.  part  11,  §  13,  and  in 
Bacon's  Ab.  title  "Wills  and  Testaments,"  letter  B.  And  Bacon  fur- 
ther adds :  "That  however  the  wills  of  traitors,  aliens,  felons  aad  out- 
lawed persons  are  void  as  to  the  king  or  lord,  that  has,  right  to  the 
lands  or  goods  by  forfeiture  or  otherwise;  yet  the  will  is  good  against 
the  testator  himself,  and  all  others,  but  such  persons  only." 

If,  therefore,  the  reason  and  doctrine  of  the  law  be  correctly  laid 
down  by  these  authors,  it  will  be  perceived  that  the  validity  or  in- 
validity of  the  will,  which  was  made  by  Rankin,  must  depend  upon  the 
question  whether  or  not,  by  the  laws  of  this  country,  he  forfeited  the 
whole  of  his  estate,  upon  being  convicted  of  the  murder  of  Blake. 
If,  on  the  conviction,  the  whole  of  his  estate  was  forfeited,  there  re- 


12  LAST   WILLS   AND    TESTAMENTS.  (Part  1 

mained  nothing  which  he  could  transmit  by  will  to  others,  and  of 
course,  according  to  the  authorities  cited,  his  will  must  be  held  void 
and  inoperative.  But  if,  notwithstanding  the  conviction,  there  was 
not  an  entire  forfeiture  of  all  his  estate,  according  to  the  same  authori- 
ties, he  was  capable  of  disposing  of  the  interest  not  forfeited,  and  as 
to  that  interest,  be  it  what  it. may,  his  will  can  have  an  operation,  and 
must  be  adjudged  valid.     *     *     * 

It  was,  therefore,  not  the  absolute  fee-simple  estate  of  the  offender 
in  lands  and  goods  that,  according  to  the  Constitution,  was  forfeited 
to  the  commonwealth  on  attainder,  or  conviction  of  felony ;  but  it  was 
the  interest  or  estate,  which  the  offender  was  entitled  to  during  his 
life  only,  that  by  the  laws  in  force  at  the  passage  of  the  act  was  for- 
feited. The  reversionary  interest,  or,  in  other  words,  that  part  of  the 
estate  which  remained  after  the  death  of  the  offender,  according  to 
those  laws,  resided  in  him  after  conviction,  and,  since  the  passage  of  the 
act,  must,  we  apprehend,  still  be  understood  to  continue  to  reside  in  the 
offender,  though  attainted  or  convicted. 

It  results,  therefore,  that,  notwithstanding  Rankin's  conviction  of  the 
murder  of  Blake,  he  retained  a  reversionary  interest  in  all  the  lands 
and  personal  estate  owned  by  him  at  the  time  of  conviction ;  so  that 
on  account  of  any  forfeiture  of  his  estate  he  cannot,  according  to  the 
authorities  cited,  be  deemed  incompetent  to  dispose  of  the  interest  not 
forfeited,  and  still  possessed  by  him.  Nor  is  there  anything  in  the 
nature  or  character  of  that  interest  which  forbids  its  being  disposed 
of  by  will.  The  Constitution,  as  well  as  the  act  of  1796,  had  both 
declared  that  no  conviction  of  felony  should  work  corruption  of  blood. 
There  was,  therefore,  nothing  either  in  the  sentence  of  condemnation 
against  Rankin,  or  in  the  nature  of  the  interest  in  reversion  held  by 
him,  which  would  have  prevented  that  interest  from  descending  and 
passing  to  his  legal  representatives,  provided  he  had  died  intestate ; 
and  the  rule  is  well  settled,  that  whatever  is  descendable  is  also  devis- 
able by  will. 

It  is,  therefore,  the  opinion  of  a  majority  of  the  court,  the  Chief 
Justice  dissenting,  that,  notwithstanding  the  conviction  of  Rankin,  he 
was  capable  of  making  a  will,  and  that  the  county  court  was  correct  in 
admitting  it  to  record. 

The  order  of  that  court  must,  consequently,  be  affirmed  with  cost." 

s  See  1  .Tarman  on  Wills.  ♦45.  Local  statutes  should  be  consulted.  The 
Rhode  Island  statute  prohibits  a  oonvkt  Troni  making  a  will  or  conveyance 
during  hi«  imprisonment.    Gen.  Laws  IL  L  1909,  p.  1309,  S  53. 


Ch.  ft)  TESTAMENTARY   CAPACITY   AND   INTENT.  IS 

SECTION  5.— MENTAL  CAPACITY 


SLAUGHTER  v.  HEATH. 

(Supreme  Court  of  Georgia,  1907.    127  Ga.  747,  57  S.  E.  69.) 

Lumpkin,  J.'  1-3.  The  motion  for  a  new  trial  contained  22  grounds. 
It  was  granted  on  5  of  them.  The  others  were  overruled.  Both  sides 
excepted.  It  was  a  second  grant  of  a  new  trial.  Several  of  the  grounds 
are  based  on  refusals  to  charge  as  requested,  to  the  effect  that,  in  or- 
der to  destroy  testamentary  capacity,  there  must  be  "a.  total  depriva- 
tion of  reason" ;  that  to  bring  about  that  result  the  testator  must  be 
non  compos  mentis^  and  that  the  law  defines  a  person  non  compos  men- 
tis to  be  "one  wholly  deficient  in  understanding,  or  who  by  grief,  sick- 
ness, or  other  accident  has  wholly  lost  his  understanding";  that  he 
must  be  "totally  deprived  of  his  reason";  and  that,  "if  his  mind  was 
not  totally  eclipsed  or  entirely  extinguished,  he  had  sufficient  capacity 
to  make  a  will."  Did  the  presiding  judge  err  in  refusing  to  give  these 
requests  in  charge? 

Various  attempts  have  been  made  to  establish  some  arbitrary  test  of 
testamentary  capacity;  but  they  have  each  had  to  be  abandoned  or 
modified  as  new  combinations  of  facts  arose  in  later  cases.  At  an  early 
date  the  English  courts  entertained  the  view  that  it  was  not  required 
that  one  should  be  mentally  perfectly  sound  in  order  to  make  a  will, 
and  that  a  delusion  not  of  a  kind  to  affect  the  will  would  not  render 
it  invalid.  Dew  v.  Clarke,  5  Russ.  163.  Then  they  seemed  to  incline 
to  a  narrower  view.  Waring  v.  Waring,  6  Moore,  P.  C.  341,  12  Jur. 
947 ;  Smith  v.  Tebbitt,  16  L.  T.  R.  841.  Then  they  returned  to  their 
original  position  that  testamentary  capacity  was  not  the  same  thing  as 
perfect  sanity.  Banks  v.  Goodfellow,  39  L.  J.  Q.  B.  237,  22  L.  T.  813, 
L.  R.  5  O.  B.  549 ;  Smee  v.  Smee,  L.  R.  5,  P.  D.  84,  49  L.  J.  P.  8 ; 
Goods  of  Bailey,  31  L.  J.  P.  178,  4  L.  T.  477 ;  Murfett  v.  Smith,  57 
L.  T.  498.  The  American  courts  have  generally  held  that  perfect  mental 
soundness  did  not  furnish  the  test,  but  that  there  may  be  partial  in- 
sanity, disconnected  from  and  not  affecting  the  making  of  the  will, 
which  would  not  render  it  invalid. 

It  has  sometimes  been  sought  to  apply  the  same  test  as  in  criminal 
cases.  But  this  will  clearly  not  answer,  since  "criminal  capacity  in- 
volves primarily  the  ability  to  distinguish  right  from  wrong;  while 
testamentary  capacity  involves  the  ability  to  understand  the  estate  to 
be  disposed  of,  the  proper  objects  of  botmty,  and  the  nature  of  the 
testamentary  act."     Page  on  Wills,  pp.  108-111,  §  94  et  seq.''     It  has 

8  Part  only  of  the  opinion  is  given, 

7  But  see  State  v.  Jones,  50  N.  H.  369,  9  Am.  Rep.  242  (1871),  and  Parsons 
V.  State,  81  Ala.  577,  2  South.  8-54,  60  Am.  Rep.  193  (1886),  on  the  true  test  of 
^iminal  capacity.     See,  also,  63  Am.  St.  Rep.  79-108,  note. 


14  LAST   WILLS   AND   TESTAMENTS.  (Part  1 

been  sometimes  sought  to  compare  capacity  to  contract  with  that  to 
make  a  will.  But  the  making  of  a  contract  with  another  party,  where 
there  is  a  consideration,  a  meeting  of  minds,  an  agreement  to  do  or 
not  to  do  some  one  or  more  things,  may  evidently  involve  a  different 
amount  of  mental  capacity  from  the  making  of  a  will,  where  the  owner 
of  property  directs  how  it  shall  go  after  his  death.  Besides,  it  will  be 
found  that  the  courts  have  not  always  agreed  in  defining  contractual 
capacity.  Page  on  Wills,  §  96;  Gardner  on  Wills,  106.  In  some  states 
there  are  statutes  along  this  line.  Our  own  Code  declares :  "An  in- 
capacity to  contract  may  coexist  with  a  capacity  to  make  a  will."  Civ. 
Code  1895,  §  3268.  It  has  been  said  in  an  early  authority:  "So,  also, 
an  idiot — i.  e.,  such  a  one  as  cannot  number  20,  or  tell  what  age  he  is,  or 
the  like — cannot  make  a  testament  or  dispose  of  his  lands  or  goods  ;  and, 
ilbeit  he  do  make  a  wise,  reasonable,  and  sensible  testament,  yet  is  the 
testament  void.  But  such  a  one  as  is  of  a  mean  understanding  only,  that 
hath  grossum  caput,  and  is  of  the  middle  sort  between  a  wise  man  and  a 
fool,  is  not  prohibited  to  make  a  testament."  2  Shep.  Touch.  402.  Some- 
times it  has  been  added,  in  defining  or  describing  an  idiot :  One  who 
does  not  know  his  own  mother  and  father,  or  cannot  tell  the  days  of  the 
week,  and  the  like.  1  Hale,  P.  C.  29  ;  Swinb.  pt.  2,  §  4.  Obviously,  how- 
ever, these  are  purely  arbitrary  tests.  All  of  us  have  most  likely  seen 
persons  who  did  not  know  their  ages,  or  who  from  illiteracy  were  unable 
to  count,  but  who  were  far  from  being  idiots  or  imbeciles.  And,  on 
the  other  hand.  Prof.  Gardner,  in  his  work  on  Wills  (page  112),  has 
said  that :  "Doubtless  a  person  who,  with  opportunities  for  learning 
these  facts,  does  not  acquire  them,  is  an  idiot ;  but  an  ability  to  do  and 
tell  these  simple  things  would  not  convincingly  prove  that  the  person 
so  capable  was  not  still  an  idiot." 

The  mind  grades  up  from  zero  to  the  intellectual  boiling  point  so 
gradually  that  dogmatic  tests  are  of  little  value.  What  is  needed  is  a 
sensible,  practical  test,  intelligible  to  a  jury.  Rejecting  any  arbitrary 
tests,  and  looking  at  the  mental  capacity  necessary  in  the  light  of  the 
thing  to  be  done,  viz.,  the  making  of  a  will,  the  courts  now  have  gen- 
erally reached  a  fairly  uniform  definition  of  testamentary  capacity,  in 
the  absence  of  special  statutes.  It  is  thus  stated  in  Gardner  on  Wills, 
p.  10.0,  J  31;_i'A  testator  has  a  sound  mind,  for  testamentary  purposes, 
/"  only  when  he  can  understand  and  carry  in  mind,  in  a  general  way,  the 
nature  and  situation  of  his  property,  and  his  relations  to  the  persons 
around  him,  to  those  who  naturally  have  some  claim  to  his  remem- 
brance, and  to  those  in  whom  and  the  things  in  which  he  has  been 
chiefly  interested.  He  must  understand  the  act  which  he  is  doing,  and 
the  relation  in  which  he  stands  to  the  objects  of  his  bounty  and  to  those 
who  ought  to  be  in  his  mind  on  the  occasion  of  making  his  will."  In 
Page  on  Wills,  p.  114,  §  97,  the  rule  is  similarly,  though  more  briefly, 
stated.  See  numerous  cases  cited  in  those  text-books,  and  1  Jarman 
on  Wills  (5  Am.  Ed.)  94,  in  note  B.  In  Rood  on  Wills,  §  111,  a  like 
rule  is  laid  down,  and  it  is  added :    "The  essential  matter  is  power  lo 


Ch.  3)  TESTAMENTARY   CAPACITY    AND   INTENT.  15 

remember.  Failure  in  fact  to  remember  all  these  elements  does  not 
make  the  will  void."  See,  also,  Underbill  on  Wills,  §  87,  and  citations. 
In  Stancell  v.  Kenan,  33  Ga.  56,  68,  this  court  announced  substantially 
the  same  rule,  and  recommended  the  following,  or  something  like  it, 
as  a  charge  on  the  subject:  "A  person  has  testamentary  capacity  who 
understands  the  nature  of  a  testament  or  will,  viz.,  that  it  is  a  disposi- 
tion of  property,  to  take  effect  after  death,  and  who  is  capable  of  re- 
membering generally  the  property  subject  to  his  disposition  and  the 
persons  related  to  him  by  the  ties  of  blood  and  of  affection,  and  also 
of  conceiving,  and  expressing  by  words,  written  or  spoken,  or  by  signs, 
or  by  both,  any  intelligible  scheme  of  disposition."  . 

But  it  is  said  that  the  words  "non  compos  mentis"  have  been  defined  i  / 
to  mean  a  total  want  of  mind  or  reason  or  understanding.  Potts  v.  *^ 
House,  6  Ga.  325,  50  Am.  Dec.  329.  It  may  be  observed,  in  passing, 
that  one  of  the  cases  referred  to  in  the  Potts  Case  (Stewart's  Executor 
V.  Lispenard,  26  Wend.  [N.  Y.]  255)  has  been  said  to  have  never  been 
received  with  much  favor  by  the  legal  profession  generally,  ar^d  has 
since  been  criticised  and  practically  overruled  in  Delafield  v.  Parish, 
25  N.  Y.  9,  *27.  1  Jarm.  Wills  (5th  Am.  Ed.)  93,  in  note  A.  And 
the  case  of  Harrison  v.  Rowan,  3  Wash.  C.  C.  580,  Fed.  Gas.  No.  6,141, 
also  cited  in  the  Potts  Gase,  lays  down  a  rule  much  like  that  stated 
above.  The  case  of  Lee's  Heirs  v.  Lee's  Ex'rs,  in  4  McGord  (S.  G.) 
183,  17  Am.  Dec.  722,  seems  to  have  been  cited  rather  to  show  the 
extreme  to  which  the  South  Carolina  court  had  gone  than  to  approve 
the  decision.  See  the  remarks  in  regard  to  it  in  6  Ga.,  at  the  bottom 
of  page  351.  Attention  is  merely  called  to  these  cases,  not  with  any 
desire  to  enter  into  criticism  of  the  opinion  in  Potts  v.  House.  For 
the  writer  of  that  opinion,  it  need  hardly  be  said,  the  present  writer 
entertains  the  profoundest  respect  and  esteem.  In  Potts  v.  House  the 
expression,  "a  mere  glimmering  of  reason,"  was  used  as  indicating  tes- 
tamentary capacity.  In  Terry  v.  Bufiington,  11  Ga.  337,  345,  56  Am. 
Dec.  423,  it  was  said  that  the  court  were  informed  that  the  language 
used  in  the  previous  case  had  been  grossly  misapprehended,  and  they 
were  asked  to  explain  what  was  to  be  understood  from  it.  The  court 
undertook  to  do  this,  and  to  illustrate  the  meaning  intended;  the  re- 
sult being  that  it  was  held  that,  though  the  mind  may  be  weak  and  dim, 
yet  it  will  suffice  if  there  be  sufficient  mental  light,  "by  which  the  testa- 
tor is  enabled  to  comprehend  the  contents  of  his  will,  the  nature  of 
the  estate  he  is  conveying  to  his  family  connection,  their  relative  situ- 
ation to  him,  the  terms  upon  which  he  stands  with  them,  his  own  situ- 
ation, and  the  circumstances  which  surround  him."  This  was  said  by 
the  same  judge  who  prepared  the  opinion  in  Potts  v.  House;  and, 
when  thus  explained,  it  will  be  seen  that  the  test  of  testamentary  ca- 
pacity laid  down  is  very  close  to,  if  not  identical  with,  the  rule  above 
announced.  See,  also,  Hall  v.  Hall,  18  Ga.  40.  In  Morris  v.  Stokes,  21 
Ga.  552,  a  charge  that  the  testator  could  will  his  property  unless  to- 
tally deprived  of  reason  was  held  not  to  be  error.    But  the  charge  also 


16  LAST   WILLS   AND   TEStAMENTS.  (Part  1 

Stated  the  rule  practically  as  above  expressed.  Then  came  the  case 
of  Stancell  v.  Kenan,  33  Ga.  56.  Then  followed  the  Code,  where  sec- 
tions 3266-3268  (as  they  are  numbered  in  the  Code  of  1895)  read  as 
follows : 

"Sec.  3266.  An  insane  person  cannot  generally  make  a  will.  A  luna- 
tic may,  during  a  lucid  interval.  A  monomaniac  may  make  a  will,  if 
the  will  is  in  no  way  the  result  of  or  connected  with  that  monomania. 
In  all  such  cases  it  must  appear  that  the  testament  does  speak  the 
wishes  of  the  testator,  unbiased  by  the  mental  disease  with  which  he  is 
affected. 

"Sec.  3267.  Eccentricity  of  habit  or  thought  does  not  deprive  a  per- 
son of  power  of  making  a  testament.  Old  age,  and  the  weakness  of 
intellect  resulting  therefrom,  does  not,  of  itself,  constitute  incapacity. 
If  that  weakness  amounts  to  imbecility,  the  testamentary  capacity  is 
gone.  In  cases  of  doubt  as  to  the  extent  of  this  weakness,  the  reason- 
able or  unreasonable  disposition  of  his  estate  should  have  much  weight 
in  the  decision  of  the  question. 

"Sec.  3268.  An  incapacity  to  contract  may  coexist  with  a  capacity 
to  make  a  will.  The  amount  of  intellect  necessary  to  constitute  testa- 
mentary capacity  is  that  which  is  necessary  to  enable  the  party  to  have 
a  decided  and  rational  desire  as  to  the  disposition  of  his  property.  His 
desire  must  be  decided,  in  distinction  from  the  wavering,  vacillating 
fancies  of  a  distempered  intellect.  It  must  be  rational,  in  distinction 
from  the  ravings  of  a  madman,  the  silly  pratings  of  an  idiot,  the  child- 
ish whims  of  imbecility,  or  the  excited  vagaries  of  a  drunkard." 

In  Gardner  v.  Lamback,  47  Ga.  133,  185,  a  charge  to  the  efifect  that 
terms  "not  of  sound  and  disposing  mind  and  memory"  imported  a  total 
deprivation  of  reason  was  given,  and  this  was  held  not  to  have  been 
error.  An  examination  of  the  charge  which  is  reported  shows  that 
the  judge  fully  gave  the  test  laid  down  in  the  Code  and  in  the  Stancell 
Case  in  33  Ga. ;  but,  having  in  his  charge  employed  the  words  "non 
compos  mentis,"  he  then  gave  a  request  defining  them.  Judge  McCay 
said  (page  193):  "Our  Code  [the  Code  of  1863]— sections  2372,  2373, 
2374 — is  in  substance  fairly  given  by  the  judge  in  his  charge  to  the 
jury.  Nor  is  the  law  as  laid  down  in  the  Code  materially  different 
from  the  rulings  of  this  court  in  Potts  v.  House,  6  Ga.  324,  50  Am. 
Dec.  329.  To  make  one  incapable  of  making  a  will  from  insanity,  he 
must  be  'non  compos  mentis.'  There  must  be  a  'total  deprivation  of 
reason.'  However  old,  feeble,  weak-minded,  capricious,  notionate  he 
may  be,  if  he  'be  able  to  have  a  decided  and  rational  desire  as  to  the 
disposition  of  his  property,'  he  is  not  wanting  in  testamentary  capacity, 
and  in  making  the  inquiry  it  would  seem  from  the  very  words  of  the 
Code  that  attention  is  to  be  given,  not  so  much  to  the  state  of  the  mind 
as  an  abstract  philosophical  or  medical  question,  as  to  its  capacity  for 
the  precise  thing  in.  hand." 

Since  the  Code  and  this  court  have  laid  down  clearly  and  concisely 
the  test  of  testamentary  capacity  practically  to  be  applied  by  the  jury, 


Gh.  3)  TESTAMENTARY   CAPACITT   AND   INTENT.  IT 

after  fully  charging  and  explaining  the  law,  we  think  it  not  always  cal- 
culated to  greatly  aid  a  jury  to  introduce  technical  or  Latin  terms 
merely  in  order  to  explain  them.     While  possibly  the  Code  may  not 
be  materially  different  from  the  ruling  in  Potts  v.  House,  when  rightly 
understood  and  applied,  yet  confusion  may  be  bred  in  this  manner,  if 
not  so  applied  and  understood.    Let  us  illustrate.    In  Potts  v.  House, 
supra,  it  was  said,  in  reference  to  testamentary  capacity,  that  the  term 
"non  compos  mentis"  imported  a  total  deprivation  of  reason.    In  Mad- 
dox  V.  Simmons,  31  Ga.  512,  it  was  said  that  "mere  weakness  of  mind, 
if  the  person  be  legally  compos  mentis,  is  no  ground  for  setting  aside 
a  contract";    and  in  the  opinion  it  was  said  that,  to  establish  the  in- 
capacity of  a  grantor,  he  must  be  shown  to  have  been  non  compos 
mentis  in  the  legal  acceptation  of  the  term,  "which  means,  not  a  par- 
tial, but  an  entire,  loss  of  understanding."    This  position  has  been  ap- 
proved several  times.    See  Nance  v.  Stockburger,  111  Ga.  821,  36  S.  E. 
100;    Richardson  v.  Adams,  110  Ga.  425,  35  S.  E.  648;    Barlow  v 
Strange,  120  Ga.  1015,  1018,  48  S.  E.  344.    Our  Code  (section  3268) 
declares  that  "an  incapacity  to  contract  may  coexist  with  a  capacity 
to  make  a  will."    Now,  if  the  Code  has  made  no  change,  and  selections 
from  these  various  sources  were  made  and  indiscriminately  charged  as 
to  the  meaning  of  "non  compos  mentis,"  it  will  be  readily  seen  that  a 
jury  might  be  led  into  this  rather  paradoxical  tangle:   Total  depriva- 
tion of  reason  is  necessary  to  destroy  contractual  capacity;    less  rea- 
son is  necessary  to  make  a  will  than  a  deed;   that  is,  something  more 
than  total  deprivation  is  required  to  destroy  testamentary  capacity,  or 
something  less  than  no  reason  at  all  will  do  to  make  a  will.    Of  course, 
this  cannot  be  the  law ;  and  we  merely  make  the  illustration  in  connec- 
tion with  what  we  have  said  as  to  avoiding  confusion  in  the  charge. 
In  Barlow  v.  Strange,  120  Ga.  1017,  48  S.  E.  345,  it  was  said,  as  to  a 
contract,  that  a  charge  that  "a  person  is  insane  when  he  or  she  is  not 
possessed  of  mind  and  reason  equal  to  a  full  and  clear  understanding 
of  the  nature  and  consequence  of  his  or  her  act,  in  making  the  con- 
tract" was  sufficient  to  cover  a  request  to  charge  that  total  deprivation 
was  necessary,  and  that  a   failure  to  give  such  a  request  was  not 
ground  for  a  reversal.     If  this  be  correct,  certainly  a  similar  ruling 
should  be  applied  to  a  charge  in  regard  to  testamentary  capacity,  and 
no  new  trial  should  be  required,  where  the  correct  test,  as  declared  by 
the  Code  and  by  this  court,  has  been  fully  given,  because  of  a  failure 
to  give  requests  to  charge  which  were  thus  covered.    Even  the  word 
"imbecility"  has  been  used  to  denote  different  grades  of  mental  weak- 
ness.   Compare  Potts  v.  House,  6  Ga.  354,  355,  50  Am.  Dec.  329,  Mor- 
ris V.  Stokes,  21  Ga.  571,  and  Civ.  Code  1895,  •§§  3267,  3268.    In  the 
Code  it  means  complete  or  total  imbecility,  with  which  is  being  con- 
trasted weakness  of  intellect  less  than  that.     The  difference  between 
"imbecility,"  as  thus  used,  and  "idiocy,"  is  generally  said  to  be  that  the 
latter  is  congenital,  while  the  former  arises  from  subsequent  causes, 

OosT.Wiiis— 2  "^^ 


18  LAST   WILLS   AND    TESTAMENTS.  (Part  1 

such  as  old  age,  disease,  or  accident.  The  insanity  which  we  have 
been  here  discussing  is  general  insanity,  not  monomania  or  delusional 
insanity. 

We  do  not  wish  to  be  understood,  from  what  we  have  said,  as  hold- 
ing that  mere  weakness  of  intellect  will  authorize  juries  to  set  aside 
wills,  if  the  testator  has  testamentary  capacity  as  defined  by  law.  In 
cases  of  doubt  as  to  this,  the  reasonableness  or  unreasonableness  of  the 
disposition  may  be  considered.  But  this  is  only  to  be  done  as  evidence 
bearing  on  the  question  of  capacity.  If  the  testator  has  sufficient  ca- 
pacity, a  jury  cannot  lawfully  set  aside  the  will  merely  because  they 
may  think  it  unjust  or  unreasonable.  The  law  does  not  intrust  them 
with  any  such  power.  Speaking  of  the  right  to  make  a  will.  Judge 
McCay,  in  Gardner's  Case,  47  Ga.  133,  says :  "It  is  a  precious  right, 
and  one  that  should  be  guarded  with  jealous  care,  that  the  aged  and 
infirm,  the  weak-minded  and  eccentric,  shall  have  this  security  for 
care  and  attention  on  a  sickbed ;  and  it  may  be  truly  said,  without  any 
harsh  criticism  on  human  nature,  that  many  a  fired  brain  has  been 
cooled  by  gentle  hands,  and  many  a  deathbed  cheered  and  watched  over 
with  kind  care,  which,  but  for  this  tender  care  of  the  law  for  this 
testamentary  right,  would  have  been  neglected  and  deserted."  See, 
also,  Deering  v.  Adams,  37  Me.  26i,  2G9 ;  1  Underbill  on  Wills,  §  114. 
Inasmuch,  however,  as  the  judge  had  contrasted  weakness  not  amount- 
ing to  incapacity  with  imbecility,  as  the  Code  does,  we  cannot  say  that 
he  erred  in  holding  that  upon  request  he  should  have  defined  the  mean- 
ing of  imbecility  as  thus  used,  or  that  this,  with  other  grounds,  did  not 
authorize  the  grant  of  a  second  new  trial.  What  has  been  said  above 
also  disposes  of  the  sixteenth  and  nineteenth  grounds.  The  general 
charge  covered  the  subject,  and  a  new  trial  was  not  necessary  on  those 
grounds.^ 

8  "A  'disposing  mind'  involves  the  exercise  of  so  mucli  mind  and  memory  as 
would  enable  a  person  to  transact  common  and  simple  kinds  of  business  with 
that  iiitellif^ence  which  belongs  to  the  weakest  class  of  sound  minds ;  and  a  dis- 
posing memory  exists  when  one  can  recall  the  general  nature,  condition,  and 
extent  of  his  property,  and  his  relations  to  those  to  whom  he  gives,  and  also 
to  those  from  whom  he  excludes,  his  bounty.  He  must  have  active  memory 
enough  to  l)ring  to  his  mind  the  nature  and  particulars  of  the  business  to  be 
transacted  and  montal  power  enough  to  appreciate  them,  and  act  with  sense 
and  juduMuent  in  regard  to  them.  He  must  have  suincient  capacity  to  compre- 
hend the  condition  of  his  property,  his  relations  to  the  persons  who  were  or 
should  have  been  the  objects  of  his  bounty,  and  the  scope  and  bearing  of  the 
provisions  of  his  will.  He  must  have  sufficient  active  memory  to  collect  in  his 
mind,  without  prompting,  the  particulars  or  elements  of  the  business  to  be 
transacted,  and  to  bold  them  in  his  mind  a  sufficient  length  of  time  to  perceive, 
at  least,  their  obvious  relations  to  each  other,  and  be  able  to  form  some  ra- 
tional judgment  in  relation  to  them.  *  *  ♦  But  mere  Intellectual  feeble- 
ness must  be  distinguished  from  unsoundness  of  mind.  The  requirement  of  a 
'sound  and  disposing  mind'  does  not  imply  that  the  powers  of  the  mind  may 
not  hyve  been  wenkened  or  impaired  by  old  age  or  bodily  disease.  A  person 
le  incnpar-itated  by  age  and  failing  memory  from  engaging  in  complex  and 
te  business,  and  incapable  of  understanding  all  parts  of  a  contract  and 

*'jf  he  able  to  give  simple  directions  for  the  disposition  of  property  by  will. 

■  eat  age  may  raise  doubt  of  capacity,  so  far  as  to  excite  the  vigilance  of  the 


Ch.  3)         TESTAMENTARY  CAPACITY  AND  INTENT.  19^ 


4.  The  propounders'  request  to  charge  set  out  in  the  seventeenth 
ground  introduced  into  the  case  the  subject  of  the  right  of  a  testator 
to  leave  his  property  to  strangers,  to  the  exchision  of  his  wife  and 
children,  and  invoked  a  charge  to  that  effect.  If  he  does  so,  however, 
the  will  should  be  closely  scrutinized,  and  slight  additional  evidence  of 
aberration  of  intellect  may  serve  to  set  it  aside.  Wetter  v.  Habersham, 
GO  Ga.  198.  But  the  court  not  only  added  this  modification,  but  also 
gave  the  entire  section  3358  of  the  Civil  Code  of  1895,  including  ref- 
erences to  collusion,  fraud,  undue  influence,  and  unfair  dealing.  Some- 
times reading  an  entire  section  of  the  Code  will  not  require  a  reversal, 
although  all  of  it  may  not  be  necessary.  Brown  v.  State,  125  Ga.  281,. 
54  S.  E.  162.  But  we  will  not  reverse  the  judge  for  granting  a  new 
trial  on  this  and  other  grounds,  when  he  doubtless  thought  it  might 
have  misled  the  jury,  and  under  the  evidence  might  have  worked  in- 
jury. 

5.  Some  two  years  before  the  making  of  the  will,  an  application  was- 
made  for  an  adjudication  by  a  commission  that  the  testator  was  an- 
imbecile,  and  to  have  a  guardian  appointed  for  him.  The  commission- 
ers .found  that  he  was  not  an  imbecile.  The  court,  on  the  trial  of  the 
present  case  arising  on  the  propounding  of  the  will,  was  requested  to 
charge  the  jury  to  the  effect  that  such  finding  was  conclusive  that  the 
testator  was  not  at  its  date  an  imbecile,  that  the  presumption  was  that 
the  same  state  of  mind  continued,  and  that  the  burden  was  on  the 
caveators  to  show  a  change  in  his  mental  condition.  He  refused  to 
so  charge,  but  subsequently  made  this  one  ground  for  granting  a  new 
trial.  Whatever  may  be  the  ruling  of  some  courts,  here  it  has  been  de- 
cided that  an  "inquisition  of  lunacy  and  the  appointment  of  a  guardian 
consequent  thereon  is  prima  facie  evidence  only,  and  not  conclusive 

court  but  it  does  not  alone  constitute  testamentary  disqualification."  White- 
house,  J.,  in  Hall  v.  Perry,  87  Me.  569,  572,  33  Atl.  160,  161,  47  Am.  St.  Rep.  352- 
(189.5).  See  Winn  v.  Grier,  217  Mo.  420.  117  S.  W.  48  (1909) ;  Taylor  v.  Mc- 
Clintock,  87  Ark.  243,  112  S.  W.  405  (1908) ;  and  a  case  note  in  3  L.  R.  A.  (N. 
S )  172 

In  Wilson  v.  Mitchell,  101  Pa.  495  (1882),  a  blind  man,  who  was  over  100' 
years  old  at  the  time,  made  a  will.  The  court  said  (page  503):  "Dougal  had 
lived  over  100  years  before  he  made  the  will  and  his  physical  and  mental  weak- 
ness and  defective  memory  were  in  sti-iking  contrast  with  their  strength  in 
the  meridian  of  his  life.  He  was  blind ;  not  deaf,  but  hearing  impaired ;  his 
mind  acted  slowly,  he  was  forgetful  of  recent  events,  especially  of  names,  and 
repeated  questions  in  conversation ;  and  sometimes,  when  aroused  from  sleep 
or  slumber,  would  seem  bewildered."     Yet  he  was  held  to  have  died  testate. 

"This  court  in  Campbell  v.  Campbell,  130  111.  466,  22  N.  E.  620,  6  L.  R.  A, 
167  (1889),  held  that,  to  constitute  a  sound  and  disposing  mind,  it  is  not  neces- 
sary that  the  mind  should  be  wholly  unbroken,  unimpaired,  and  unshattered 
by  disease  or  otherwise,  or  that  the  testator  be  in  possession  of  all  his  reason- 
ing faculties ;  that  a  man  may  be  competent  to  make  a  disposition  of  his  prop- 
erty by  will  where  it  is  simple  and  easy  of  comprehension  and  at  the  same  time- 
be  incompetent  to  make  a  will  which  involves  a  very  large  estate  and  the  con- 
sideration of  the  natural  claims  of  a  large  number  of  relatives.  Clearly,  by 
reason  and  authority,  therefore,  each  case  must  be  largely  judged  in  connection 
with  its  own  special  facts,  circumstances,  and  surroundings."  Carter,  J.,  irt; 
Drum  V.  Capps,  240  111.  524,  542,  88  N.  E.  1020,  1025  (1909). 


^: 


20  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

against  third  persons,  who  were  not  parties  to  it.**    Field  v.  Lucas,  21 

Ga.  447,  68  Am.  Dec.  465.     This  was  a  case  involving  testamentary 

capacity.     *     *     ♦ 

The  court  did  not  err  in  refusing  the  charge  requested."     *     *     * 
Judgment  on  the  main  bill  of  exceptions  affirmed ;   on  the  cross-bill, 

reversed  in  part.    All  the  Justices  concur,  except  Fish,  C.  J.,  absent, 

and  Beck,  J.,  disqualified. 


HOPKINS  et  al.  v.  WAMPLER. 
(Supreme  Court  of  Appeals  of  Virginia,  1908.    108  Va.  705,  62  S.  E.  926.) 

Whittle,  J.^°  The  plaintiffs  in  error,  J.  H.  Hopkins  and  Susannah 
Hildebrand,  proponents  of  a  paper  writing  purporting  to  be  the  last 
will  of  Amanda  E.  Miller,  deceased,  bring  error  to  the  final  sentence 
and  judgment  of  the  trial  court  approving  the  finding  of  the  jury,  on 
an  issue  devisavit  vel  non,  that  said  paper  was  not,  nor  was  any  part 
thereof,  the  true  last  will  of  Amanda  E.  Miller. 

The  sole  question  submitted  to  the  jury  was  the  testamentary  ca- 
pacity of  the  testatrix,  and  the  principal  error  assigned  relates  to  the 
ruling  of  the  court  in  the  matter  of  the  degree  of  proof  which  rested 
upon  the  proponents  on  the  trial  of  that  issue. 

The  instruction  complained  of  told  the  jury  "that  a  party  who  seeks 
to  set  up  a  will  must  prove  by  a  preponderance  of  evidence  that  the 
paper  offered  for  probate  is  the  true  will  of  a  capable  testator,  and  that 
nothing  short  of  clear  and  convincing  evidence  will  suffice ;  and,  unless 
the  jury  believe  that  it  has  been  established  by  clear  and  convincing 
evidence  that  Amanda  Miller  was  a  capable  testatrix  at  the  time  of 
the  execution  of  the  paper,  *  *  *  they  must  find  a  verdict  against 
the  same." 

The  unqualified  language  of  this  instruction,  which  wholly  omits  the 
presumption  in  favor  of  sanity  and  announces  the  proposition  that  the 

»  "The  fact  that  one  Is  under  gruardianshlp  as  an  insane  person  is  not  con- 
clusive asainst  his  capacity  to  make  a  will  while  the  guardianship  continues. 
But  it  does  not  follow  from  this  that  the  dismissal  on  the  merits  of  an  apiili- 
mtlon  for  the  appointment  of  a  guardian  of  one  as  an  insane  person  Is  conclu- 
sive in  favor  of  his  capacity  to  make  a  will.  •  •  •  The  ground  of  appoint- 
ing a  guardian  of  a  person  as  insane  is  that,  by  reason  of  mental  weakness 
or  distraction,  or  both,  he  is  incapable  of  taking  care  of  himself;  and  the  ob- 
ject of  it  is  to  secure  proper  care  of  his  person  and  property.  •  •  *  A  man 
may  bo  insane  on  some  subjects  and  not  on  others.  He  may  be  insane  on  one 
snbjof't  and  sane  on  all  others.  His  insanity  may  be  of  such  a  character,  and 
run  along  snrh  a  line,  as  in  no  wise  to  affect  his  capacity  to  take  care  of  him- 
self and  his  property.  The  insanity  last  mentioned  would  not  warrant  the  af)- 
pointment  of  a  guardian  over  him,  as  itwould  not  constitute  the  statutory  cause 
for  the  api)olntment,  and  yet  it  might  consist  of  such  a  delusion  In  respect  of 
a  disinherited  child  as  to  defeat  a  will  that  was  the  direct  offspring  of  the  par- 
tial Insanity."  Rowell.  J.,  in  Mauley's  Ex'r  v.  Staples,  62  Vt  153,  155,  19  Atl. 
983.  r)S4.  8  L.  R.  A.  707  (1890). 

10  Part  only  of  the  opinion  is  given. 


Ch.    3)  TESTAMENTARY   CAPACITY    AND   INTENT. 

burden  of  proving  testamentary  capacity  by  clear  and  convincing  tes- 
timony is  upon  the  proponents,  is  not  in  harmony  with  the  estabUshed 
rule  on  that  subject,  and  was  calculated  to  mislead  the  jury. 

It  is  true  that  in  probate  proceedings  the  court  or  jury  must  be  sat- 
isfied, not  only  that  the  will  has  been  executed  in  accordance  with  the 
statute,  but  also  that  it  is  the  last  will  of  a  free  and  capable  testator. 
Yet  in  general  the  latter  is  presumed  when  the  due  execution  of  the 
will  is  proved.  2  Min.  Inst.  (2d  Ed.)  pp.  939,  940;  Wallen  v.  Wallen, 
107  Va.  131,  57  S.  E.  596. 

In  Burton  v.  Scott,  3  Rand.  399,  Judge  Carr,  in  discussing  the  rules 
of  evidence  which  govern  questions  of  insanity  in  cases  of  probate,  ob- 
serves: "I  understood  the  counsel  for  the  appellants  [the  contestants] 
to  lay  it  down,  as  a  general  rule,  that  it  was  incumbent  on  the  devisee 
claiming  under  a  will  to  prove  the  sanity  of  the  testator;  that  the 
onus  was  upon  him  in  every  question  of  this  sort.  Taken  in  this  lati- 
tude, I  do  not  consider  the  position  correct.  The  natural  presump- 
tion is  that  every  man  is  sane  and  competent  to  make  a  will,  and  this 
presumption  must  stand  until  destroyed  by  proof  on  the  other  side. 
To  say  that  insanity  must  be  presumed  until  sanity  be  proved  would 
seem  to  be  saying  that  insanity  is  the  natural  state  of  the  human  mind." 
Temple  v.  Temple,  1  Hen.  &  M.  476;  Porter  v.  Porter,  89  Va.  118, 
15  S.  E.  500 ;  Wallen  v.  Wallen,  supra. 

Where,  however,  the  sanity  of  the  testator  is  put  in  issue  by  the  evi- 
dence of  the  contestant,Jhe  onus  proband!  lies  upon  the  proponent  to 
satisfy  the  court  or  jury  that  the  writing  propounded  is  the  will  of  a 
■^pable  testator.  Yet,  upon  the  trial  of  that  issue,  there  is  an  existent 
presumption  in  favor  of  the  testator's  sanity.  Indeed,  of  such  force 
is  that  presumption  in  our  jurisprudence  that  though  one  be  on  trial 
for  a  felony,  involving  life  or  liberty,  when  the  defense  of  insanity  is 
relied  on,  it  must  be  proved  to  the  satisfaction  of  the  jury.   . 

In  Wallen  v.  Wallen,  supra,  the  doctrine  is  thus  formulated :  "The 
burden  of  proving  testamentary  capacity  is  on  the  propounder  of  a  will, 
but,  when  a  will  is  offered  for  probate  and  it  is  shown  that  all  the  stat- 
utory formalities  have  been  complied  with,  and  especially  when  it 
appears  that  the  will  is  wholly  in  the  handwriting  of  and  is  signed  by 
the  testator,  there  is  a  presumption  of  testamentary  capacity.  There 
is,  indeed,  a  presumption  in  favor  of  the  sanity  of  every  man  until 
evidence  that  he  is  of  imsound  mind  is  introduced." 

On  the  question  of  the  quantum  of  proof  of  testator's  sanity,  the 
court  approved  an  instruction  that  it  must  be  estabhshed  by  "a  pre- 
ponderance  of  testimony"  rather  than  by  ''clear  proof." 
""  In  the  leading  case  of  Riddell  v.  Johnson's  Ex'r,  26  Grat.  152  (a 
suit  in  equity  to  set  aside  a  bequest  to  testator's  attorney  who  wrote 
the  will),  the  court  upon  a  review  of  the  authorities  in  this  country 
and  in  England,  at  page  177,  quotes  with  approval  the  rule  laid  down 
by  Baron  Parke  in  Barry  v.  Butlin,  1  Curt.  Ecc.  R.  637 :    "That  the 


ji.-- 


22  LAST  WILLS  AND   TESTAMENTS.  (Part  1 

onus  proband!  lies  in  every  case  upon  the  party  propounding  a  will ; 
and  he  must  satisfy  the  conscience  of  the  court  that  the  instrument 
so  propounded  is  the  last  will  of  a  free  and  capable  testator." 

It  was  suggested  in  the  argument  of  the  case  in  judgment  that  a 
higher  degree  of  proof  of  testamentary  capacity  was  required  in  Tuck- 
er V.  Sandidge,  85  Va.  546,  8  S.  E.  650,  Chappell  v.  Trent,  90  Va.  849, 
19  S.  E.  314,  and  Gray  v.  Rumrill,  101  Va.  512,  44  S.  E.  697. 

In  those  cases,  it  is  true,  the  court  does  say  that  "nothing  short  of 
clear  and  convincing  evidence  will  sufifice,"  or  that  the  proof  must  be 
"clear  and  convincing."  But  to  sustain  that  proposition  Tucker  v. 
Sandidge  cites  Riddell  v.  Johnson.  Chappell  v.  Trent  refers  to  no 
authority,  and  Gray  v.  Rumrill  cites  the  two  former  cases.  So  it  will 
be  observed  that  these  cases  rely  upon  Riddell  v.  Johnson,  and,  while 
they  change  the  phraseology  of  the  rule,  it  is  not  believed  that  it  was 
intended  to  modify  the  well-settled  doctrine  of  the  degree  of  proof  re- 
quired in  that  class  of  cases. 

We  conclude  on  that  branch  of  the  case  (testatrix's  sanity  having 
been  drawn  in  question)  that  the  burden  of  proving  her  sanity  at  the 
time  of  the  execution  of  the  alleged  will  to  the  satisfaction  of  the  jury 
rested  upon  the  propounders;  and  in  determining  that  question  the 
jury  should  also  have  taken  into  consideration  the  presumption  in  favor 
of  testatrix's  sanity.    *    *    * 

Upon  these  considerations  we  are  of  opinion  that  the  sentence  and 
judgment  of  the  trial  court  should  be  reversed,  the  verdict  of  the  jury 
set  aside,  and  the  case  remanded  for  a  new  trial  to  be  had  not  in  con- 
flict with  this  opinion.    Reversed.^^ 

11  On  the  burden  of  proof  of  testamentary  capacity,  see  17  L.  R.  A.  494,  note ; 
6  Am.  Prob.  Rep.  177,  note.  The  difference  of  views  relates  to  the  duty  of  going 
forward  with  evidence.    4  Wigmore  on  Evidence,  §  2500. 

In  Swvgart  v.  Wilhird,  16G  Ind.  25,  33,  34,  76  N.  E.  755,  759,  7G0  (190G),  the 
-court  sustained  an  instruction  stating,  among  other  things,  that  "a  monomaniac 
is  a  person  who  is  deranged  in  a  single  faculty  of  his  mind  or  with  regard  to 
a  particular  subject  only,"  and  that  "you  may  find  that  the  testator  in  this 
case  was  alllicted  with  monomania,  or  with  delusions,  or  any  form  of  mental 
unsoundness ;  but  it  must  further  appear  by  a  preponderance  of  the  evidence 
in  this  case  that  such  unsoundness  of  mind  entered  into  and  affected  the  pro- 
visions of  the  will  in  controversy  before  you  can  find  that  the  testator  was  of 
unsound  mind  with  reference  to  the  will  in  controversy." 

In  Will  of  Dardis,  135  Wis.  457,  115  N.  W.  332.  23  L.  R.  A.  (N.  S.)  783,  12S 
Am.  St.  Rep.  1033  (1908),  it  was  held  that  a  wUl  was  properly  admitted  to 
probate  on  the  testimony  of  the  subscribing  witnesses,  although  all  the  heirs 
and  next  of  kin  of  the  decedent  and  all  the  beneficiaries  named  in  the  will  en- 
tered into  a  stipulation  to  the  effect  that  the  decedent  was  mentally  incompe- 
tent and  agreed  that  probate  of  the  will  should  be  denied.  In  the  L.  R.  A. 
(N.  S.)#report  will  be  found  a  case  note  on  the  validity  and  effect  of  such  a 
stipul/t4on.  See,  also,  on  the  validity  and  enforceability  of  agreements  to  dis- 
pens^with  the  probate  of  a  will,  15  Am.  &  Eng.  Ann.  Cas.  742,  note.  On  the 
relatJd  question  of  the  validity  of  agreements  to  contest  or  defeat  the  probate 
jiill,  see  IG  L.  R.  A.  (N.  S.)  23G.  note;  15  Am.  &  Eng.  Ann.  Cas.  300,  note, 
validity  of  a  contract  not  to  contest  the  probate  of  a  will,  see  13  L*  R.  A. 
484,  note. 


Ch.  3)  TESTAMENTARY   CAPACITY    AND   INTENT.  23 

OWEN  V.  CRUMBAUGH  et  al. 

(Supreme  Court  of  Illinois,  1907.^  228  111.  380,  81  N.  E.  1044,  119  Am.  St.  Rep. 

442.) 

ViCKERS,  J.^^  *  *  *  In  fact,  it  is  conceded  by  contestants  that 
the  testator  was  sane  on  all  subjects  except  Spiritualism.  Aside  from 
this,  the  evidence  proves,  beyond  a  reasonable  doubt,  that  in  all  the 
relations  and  affairs  of  life  the  testator  was  entirely  rational,  and  acted 
with  that  judgment,  prudence,  and  foresight  usually  exercised  by  care- 
ful and  successful  business  men.  He  was  able  to  amass  a  large  fortune 
for  a  man  engaged  in  his  line  of  business,  and  to  invest  and  manage 
it  so  as  to  avoid  losses  and  preserve  it  intact  until  the  day  of  his  death. 
The  only  basis  to  be  found  in  this  record  for  questioning  the  testa- 
mentary capacity  of  the  testator  is  the  fact  that  the  testator  was  a  be- 
liever in  Spiritualism  and  the  claim  that  this  belief  amounted  to  an  in- 
sane delusion,  under  the  influence  of  which  the  testator  made  the  will 
in  question.  It  must  be  admitted,  under  the  proofs  here,  that  the  tes- 
tator was  an  ultraist  regarding  all  of  the  doctrines  embraced  in  the 
articles  of  faith  of  the  Spiritualist  association ;  but  that  there  is  any 
evidence  in  this  record  of  insanity  or  insane  delusions,  which  cannot 
be  accounted  for  by  reason  of  Crumbaugh's  belief  in  Spiritualism, 
cannot  be  maintained.  Under  the  law  of  Illinois  every  person  of  req- 
uisite age,  being  of  sound  mind  and  memory,  has  the  power  to  devise 
all  of  his  property  in  any  way  he  may  elect;  and  when  the  validity  of 
a  will  is  challenged  on  the  ground  that  the  testator  did  not  possess  the 
requisite  testamentary  capacity,  the  ultimate  and  final  question  is,  did 
the  testator,  at  the  time  when  the  instrument  was  executed,  possess 
the  sound  mind  and  memory  required  by  section  1  of  our  statute  of 
wills? 

Courts  and  text-writers  have  often  considered  the  question  of  what 
is  and  what  is  not  a  proper  test  of  testamentary  capacity.  In  Campbell 
V.  Campbell,  130  111.  466,  22  N.  E.  620,  6  L.  R.  A.  167,  this  court,  after 
an  extensive  review  of  many  authorities  in  this  and  other  jurisdictions, 
laid  down  the  following  test :  "The  true  inquiry  in  every  case,  there- 
fore, is,  did  the  person  whose  testamentary  capacity  is  questioned,  have, 
at  the  time  of  making  his  will,  such  mind  and  memory  as  enabled  him 
to  understand  the  business  in  which  he  was  then  engaged  and  the  ef- 
fect of  the  disposition  made  by  him  of  his  property?  If  he  did,  he  was 
possessed  of.the  sound  mind  and  memory  required  by  the  statute ;  and 
all  degrees  of  impairment  of  the  mental  faculties,  or  dementia,  whether 
senile  or  produced  by  other  cause,  which  destroy  the  testamentary 
capacity,  will  disqualify,  whether  it  has  reached  the  stage  -of  absolute 
imbecility  or  not."  Any  mere  mental  aberrations  resulting  in  the  sub- 
normal exercise  of  the  faculties,  which  do  not  result  in  such  impair- 

12  Part  only  of  tlie  opinion  is  given. 


24 


LAST    WILLS   AND   TESTAMENTS.  (Part  1 


ment  of  the  reason,  judgment,  and  memory  as  to  render  a  testator  un- 
able to  understand  the  business  of  making  a  will  and  the  effect  of  the 
disposition  to  be  made  of  his  property,  ^ill  not  vitiate  the  will.  The 
existence  of  delusions  or  delusional  insanity  is  recognized,  both  by 
scientists  and  legal  writers,  as  a  form  of  insanity  which,  when  shown 
to  have  existed  in  the  testator  at  the  time  the  will  was  executed  and  to 
have  controlled  its  execution,  will  avoid  the  instrument.  The  existence 
of  insane  delusions  on  one  subject  is  not  incompatible  with  sanity  on  all 
other  subjects.  Contestants'  position  in  the  case  in  hand  is  that  the 
testator  was  sane  on  all  subjects  except  Spiritualism,  as  to  which  it  is 
contended  he  had  an  insane  delusion  within  the  legal  meaning  of  those 
terms,  and  that  the  will  in  question  was  the  result  of  such  insane  delu- 
sions, and  is  therefore  void.  It  therefore  becomes  necessary  to  examine 
with  some  particularity  whether,  under  the  evidence,  such  contention 
can  be  sustained. 

An  insane  delusion  which  will  render  the  sufferer  incapable  of  mak- 
ing a  will  is  difficult  to  define  with  exact  precision.    A  delusion  is  said 
to  be  a  belief  in  a  state  or  condition  of  things  the  existence  of  which 
no  rational  person  would  believe.    In  re  Forman,  54  Barb.  (N.  Y.)  274 ; 
Prather  v.  McClelland,  76  Tex.  574,  13  S.  W.  543 ;  Schneider  v.  Man- 
ning, 121  111.  376,  12  N.  E.  267.    A  delusion  has  also  been  defined  as 
"a.  spontaneous  conception  and  acceptance  as  a  fact  of  that  which  has 
no  real  existence  except  in  imagination,  and  persistent  adherence  to  it 
against  all  evidence."    Smith  v.  Smith,  48  N.  J.  Eq.  566,  25  Atl.  11 ; 
Rush  V.  Megee,  36  Ind.  69 ;   Philadelphia  Trust  and  Sav.  Dep.  Co.  v. 
Drinkhouse,  17  Phila.  (Pa.)  23.     Again,  the  same  definition,  in  sub- 
stance, is  given  in  Potter  v.  Jones,  20  Or.  239,  25  Pac.  769,  12  L.  R. 
A.  161,  as  follows:    "A  conception  that  originated  spontaneously  in 
the  mind,  without  evidence  of  any  kind  to  support  it,  which  can  be  ac- 
counted for  on  no  reasonable  hypothesis,  having  no   foundation  in 
reality,  and  springing  from  a  diseased  or  morbid  condition  of  the 
mind."    Another  form  of  definition,  conveying  substantially  the  same 
meaning,  is  given  in  Middleditch  v.  Williams,  45  N.  J.  Eq.  726,  17  Atl. 
826,  4  L.  R.  A.  738,  and  is  as  follows:   "If,  without  evidence  of  any 
kind,  a  testator  imagines  or  conceives  something  to  exist  which  does 
not  exist  in  fact,  and  which  no  rational  person  would,  in  the  absence  of 
evidence,  believe  to  exist,  he  is  afilicted  with  an  insane  delusion." 
"Whenever  a  person  conceives  something  extravagant  to  exist,  which 
has  no  existence  whatever  but  in  his  heated  imagination,  and  is  in- 
capable of  being  permanently  reasoned  out  of  that  conception,  he  is 
under  an  insane  delusion  in  a  peculiar,  half-technical  sense  of  the  term." 
Mullins  v.  Cottrell,  41  Miss.  291;    Benoist  v.  Murrin,  58  Mo.  307; 
Stanton  v.  Wetherwax,  16  Barb.  (N.  Y.)  259.    A  person  who  believes 
supposed  facts,  which  have  no  existence  except  in  his  perverted  imagi- 
nation, and  which  are  against  all  evidence  and  probability,  and  con- 
ducts himself,  however  logically,  upon  the  assumption  of  their  exist- 
ence, is,  so  far  as  they  are  concerned,  under  an  insane  delusion.     In 


Ch,  3)  TESTAMENTARY    CAPACITY    AND    INTENT.  25 

re  Shaw,  2  Redf.  Sur.  (N.  Y.)  107;  In  re  White,  121  N.  V.  406,  24 
N.  E.  935. 

In  setting  out  these  various  definitions,  we  do  not  do  so  with  the  pur- 
pose of  giving  our  approval  to  each  of  them,  but  merely  to  show  the 
different  forms  of  expression  that  courts  have  used  to  express  the 
legal  conception  of  an  insane  delusion.  Whatever  form  of  words  is 
chosen  to  express  the  legal  meaning  of  an  insane  delusion,  it  is  clear, 
under  all  of  the  authorities,  that  it  must  be  such  an  aberration  as  in- 
dicates an  unsound  or  deranged  condition  of  the  mental  faculties,  as 
distinguished  from  a  mere  belief  in  the  existence  or  nonexistence  of 
certain  supposed  facts  or  phenomena  based  upon  some  sort  of  evidence. 
A  belief  which  results  from  a  process  of  reasoning  from  evidence,  how- 
ever imperfect  the  process  may  be  or  illogical  the  conclusion,  is  not  an 
insane  delusion.  An  insane  delusion  is  not  established  when  the  court 
is  able  to  understand  how  a  person  situated  as  the  testator  was  might 
have  believed  all  that  the  evidence  shows  that  he  did  believe  and  still 
have  been  in  full  possession  of  his  senses.  Thus,  where  the  testator 
has  actual  grounds  for  the  suspicion  of  the  existence  of  something  in 
which  he  believes,  though  in  fact  not  well  founded  and  disbelieved  by 
others,  the  misapprehension  of  the  fact  is  not  a  matter  of  delusion  which 
will  invalidate  his  will.  Stackhouse  v.  Horton,  15  N.  J.  Eq.  203 ;  Pot- 
ter V.  Jones,  supra ;  Martin  v.  Thayer,  37  W.  Va.  38,  16  S.  E.  489 ; 
Muilins  V.  Cottrell,  supra. 

The  case  of  Wait  v.  Westfall,  161  Ind.  648,  68  N.  E.  271,  is  an  in- 
structive case  on  this  phase  of  the  doctrine  of  insane  delusions.  There 
the  testator  believed  that  he  could  locate  hidden  treasure  by  means  of  a 
small  metallic  ball  suspended  on  a  thread.  He  spent  a  great  deal  of  his 
time  in  going  over  the  fields  trying  to  locate  the  hidden  metallic  treas- 
ure, and  holes  were  dug  in  so  many  places  that  they  became  a  nuisance 
and  had  to  be  stopped.  It  was  shown  that  a  silver  dollar  hid  under  the 
carpet  in  a  room  could  be  located  by  the  peculiar  vibrations  of  the 
metallic  ball  when  it  was  suspended  over  the  silver  dollar,  and  this  cir- 
cumstance offered  some  basis  for  the  testator's  belief  that  he  could 
locate  money  buried  in  the  ground  by  the  same  means,  and  the  fact 
that  there  was  this  basis  for  the  testator's  belief,  however  erroneous  or 
mistaken  the  conclusion  drawn  therefrom,  distinguished  the  belief  from 
an  insane  delusion.  It  is  true  that  the  bare  fact  that  the  metallic  ball 
would  indicate,  by  certain  vibratory  motions,  where  a  silver  dollar  was, 
might  be  by  most  persons  regarded  as  a  very  trifling  circumstance  up- 
on which  to  predicate  a  belief  that  one  could  find  treasure  hidden  in 
the  earth  in  the  same  way ;  but  it  serves  to  show  that  the  belief  was  not 
a  spontaneous  creation  of  a  deranged  mind. 

The  following  excerpt  of  the  opinion  of  Mr.  Justice  Hadley  in  this 
case  is  pertinent  to  the  question  now  under  consideration:  "What 
tribunal  occupied  by  finite  beings  is  qualified  to  adjudge  false  asserted 
forces  of  attraction  and  magnetism  or  the  phenomena  of  mind,  because 
incapable  of  demonstration,  or  that  certain  supernatural  powers  and  in- 


26  LAST   WILLS   AND   TESTAMENTS.  (Part  1 

Alienees  do  not  exist,  because  not  in  accord  with  an  assumed  standard 
of  mental  action  ?  In  all  the  ages  of  the  world  instruments  and  devices 
have  been  employed  in  locating  minerals  in  the  earth.  The  fact  is  no- 
torious that  there  are  many  intelligent,  conservative  persons  who  claim 
the  power  of  locating  water  in  the  earth  by  means  of  a  forked  stick, 
and  thousands  of  wells  located  by  them  have  been  dug  and  are  still 
being  dug.  It  is  equally  a  matter  of  common  report  that  such  a  stick 
will  point  downward  at  particular  places  in  the  hands  of  some  men,  and 
not  in  the  hands  of  others.  Many  scholars  and  successful  business  men 
sincerely  believe  in  Spiritualism,  and  of  being  able,  not  by  all,  but 
through  the  instrumentality  of  a  few  naturally  qualified  persons  called 
'mediums,'  to  converse  with  and  be  advised  by  the  spirits  of  departed 
friends,  and  believe  they  recognize  the  voices  and  handwriting  of  the 
dead.  Mental  phenomena  are  as  various  as  the  hues  of  the  autumnal 
forest.  In  Chafin's  Will,  32  Wis.  564,  it  is  said:  'Dr.  Carver,  a  very 
intelligent  medical  witness,  who  had  been  in  the  Western  mines,  testi- 
fied :  "I  have  seen  hundreds  of  men  in  the  mountains,  who  came  there 
on  dreams,  including  lawyers,  doctors,  and  priests.  *  *  *  Business 
men  here  in  Monroe  have  been  and  searched  for  minerals  under  the 
direction  of  clairvoyants."  '  Others  believe  in  Christian  Science,  others 
in  clairvoyance,  others  in  the  transmigration  of  souls,  and  others  in 
witchcraft.  To  affirm  or  deny  the  truth  of  these  things  proves  nothing, 
and  demonstrates  the  individual  to  be  neither  a  sage  nor  a  fool.  Who 
shall  be  the  judge  whether  the  mind  that  accepts  or  reflects  them  is  the 
truly  sane  mind?  If  we  affirm  that  witches  do  not  ride  broomsticks 
and  practice  their  evil  arts  upon  us,  and  that  there  are  no  witches,  then 
we  have  Blackstone,  the  father  of  our  common  law.  Chief  Justice 
Mathew  Hale,  Coke,  Sir  Francis  Bacon,  Richard  Baxter,  John  Wesley, 
Martin  Luther,  Cotton  Mather,  and  a  host  of  other  eminent  jurists  and 
savants,  against  us ;  encyclopedias ;  Nevin's  Witchcraft  in  Salem  Vil- 
lage; Upham's  Salem  Witchcraft;  Campbell's  Lives  of  the  Chief  Jus- 
tices, vol.  2.  Early  in  the  history  of  our  jurisprudence  much  difficulty, 
for  the  reason  above  suggested,  was  experienced  by  the  courts  in  fixing 
a  standard  of  intellect  by  which  testamentary  capacity  cotikl  be  deter- 
mined, and  legislative  bodies  were  not  inclined  to  relieve  the  courts  of 
their  embarrassment.  For  instance,  our  statute  for  more  than  a  half 
century  has  provided  that  all  persons,  except  infants  and  persons  of 
unsound  mind,  may  make  a  will.  Similar  statutes  have  long  prevailed 
in  other  states  of  the  Union  and  in  England.  In  construing  these  stat- 
utes the  courts  of  both  this  country  and  England  were  at  first  disposed 
to  hold  that  any  mind  possessed  of  an  eccentricity,  aberration,  or  er- 
ratic trend,  such  as  amounted  to  an  insane  delusion,  was  not  a  sound 
mind  within  the  meaning  of  the  statute,  and  hence  incapable.  This  doc- 
trine has  long  since  been  repudiated  by  the  courts  of  England,  and  for 
the  most  part,  at  least,  by  the  courts  of  this  country — certainly  by  th's 
state  since  Tecgarden  v.  Lewis,  145  Ind.  98,  40  N.  E.  1047,  44  N.  E. 
9.     Under  the  law  as  now  settled,  capacity  is  not  determined  by  what  one 


Ch.  3)  TESTAMENTAPwT    CAPACITY   AND   INTENT.  27 

believes,  nor  by  the  character  of  the  horrid  tales  he  can  tell.  The  test 
is,  does  there  remain  in  the  subject  an  untrammeled  intellect,  sufficiently 
strong  and  rational  to  know  the  value  and  extent  of  his  property,  the 
number  and  names  of  those  who  are  the  natural  objects  of  his  bounty, 
their  deserts  with  reference  to  their  conduct  and  treatment  toward  him, 
and  memory  sufficient  to  carry  these  things  in  mind  long  enough  to 
have  his  will  prepared  and  executed.  See  cases  collected  in  Teegarden 
V.  Lewis,  145  Ind.  98,  103,  40  N.  E.  1047,  1048,  44  N.  E.  9." 

In  the  late  case  of  Scott  v.  Scott,  212  111.  597,  72  N.  E.  708,  we  held 
that  a  belief  in  Swedenborgianism  and  an  enthusiasm  manifested  in 
propagating  that  faith  furnish  no  evidence  of  monomania,  insane  de- 
lusion, or  insanity.  There  the  testator  devised  the  greater  portion  of  his 
property  to  a  corporation  which  was  organized  for  the  sole  object  of 
printing,  publishing,  and  circulating  the  theological  works  and  writings 
of  Emanuel  Swedenborg,  and  the  only  evidence  of  delusion  was  the 
belief  of  the  testator  in  the  teachings  of  the  so-called  Swedenborgian 
Church.  In  disposing  of  that  contention  this  court  said  (page  603  of 
212  III,  page  710  of  72  N.  E.)  :  "The  great  majority  of  civilized  human 
beings  believe  in  the  existence  of  a  life  beyond  the  grave.  Based  upon 
that  belief,  many  religious  creeds,  differing  widely,  have  been  estab- 
lished. The  fact  that  an  individual  holds  any  particular  belief  in  regard 
to  a  future  state  of  existence  cannot,  of  itself,  be  evidence  of  an  insane 
delusion  or  monomania.  An  insane  delusion  is  a  belief  in  something 
impossible  in  the  nature  of  things,  or  impossible  under  the  circum- 
stances surrounding  the  afflicted  individual,  and  which  refuses  to  yield 
either  to  evidence  or  reason.  Riggs  v.  A.  H.  M.  Society,  35  Hun,  656 ; 
State  V.  Lewis,  20  Nev.  333,  22  Pac.  241;  Rush  v.  Megee,  36  Ind. 
80.  We  have  heretofore  said  that  'insane  delusion  consists  in  the  be- 
lief of  facts  which  no  rational  person  would  have  believed.'  Nice- 
wander  v.  Nicewander,  151  111.  156,  37  N.  E.  698;  Schneider  v.  Man- 
ning, 121  111.  376,  12  N.  E.  267.  Such  a  delusion  does  not  exist  un- 
less it  is  one  whose  fallacy  can  be  certainly  demonstrated ;  for,  except 
such  demonstration  can  be  made,  it  cannot  be  said^that  no  rational  per- 
son would  entertain  the  belief.  Consequently  no  creed  or  religious  be- 
lief, in  so  far  as  it  pertains  to  an  existence  after  death,  can  be  regarded 
as  a  delusion,  because  there  is  no  test  by  which  it  can  be  tried  and  its 
truth  or  falsity  demonstrated.  Gass  v.  Gass,  3  Humph.  (Tenn.)  278 ; 
Buchanan  v.  Pierie,  205  Pa.  123,  54  Atl.  583,  97  Am.  St.  Rep.  725 ; 
Orchardson  v.  Cofield,  171  111.  14,  49  N.  E.  197,  40  L.  R.  A.  256,  63 
Am.  St.  Rep.  211." 

Tested  by  the  rules  laid  down  in  the  foregoing  authorities,  it  is  clear 
that  the  testator  in  the  case  at  bar  was  not  the  victim  of  an  insane  delu- 
sion, within  the  meaning  of  the  law.  In  the  light  of  these  authorities 
let  us  examine  the  occurrences  which  contestants  rely  on  as  showing 
that  the  testator  was  controlled  by  an  insane  delusion.  Take,  for  ex- 
ample, the  fact  that  the  testator  said  that  his  brother  and  sister-in-law 
caused  the  death  of  his  only  child.     The  evidence  explained  what  the 


28  LAST  WILL8   AND    TESTAMENTS.  (Part  1 

testator  meant.  The  child  was  being  fed  from  the  milk  of  a  cow  be- 
longing to  the  testator's  brother.  It  is  not  denied  that  the  owner  of  the 
cow  took  it  away  from  the  testator's  home  without  his  consent,  thereby 
making  it  necessary  to  feed  the  child  upon  the  milk  of  another  cow. 
It  is  not  denied  that  the  child  sickened  and  died  after  the  change  in 
its  food.  Who  would  say  that  there  was  no  evidence  whatever  for  the 
charge  that  the  taking  away  of  the  cow  was  the  cause  of  the  baby's 
death?  It  is  a  matter  of  common  knowledge  that  physicians  and  care- 
ful mothers  exercise  great  care  in  changing  the  food  for  infants,  and 
the  fact  that  the  testator  may  have  believed  that  the  change  from  the 
milk  of  one  cow  to  that  of  another  was  the  cause  of  the  sickness  and 
death  of  his  child  has  some  reason  in  it.  If  there  had  been  no  such  cir- 
cumstance as  the  child  being  fed  upon  the  milk  of  this  particular  cow, 
and  the  whole  matter  were  a  figment  of  pure  imagination,  then  there 
might  be  some  reason  for  saying  that  it  originated  in  a  disordered 
brain.  But  such  is  not  the  proof.  It  makes  no  difference,  with  this 
view,  that  the  testator  believed  that  the  facts  in  relation  to  the  death  of 
his  child  had  been  revealed  to  him  by  spiritual  communication.  There 
is  nothing  connected  with  this  circumstance  showing  that  the  testator's 
belief  in  regard  to  spiritual  communication  was  any  different  from  the 
belief  of  Spiritualists  in  general.  The  preservation  of  the  testator  from 
threatened  harm  in  connection  with  the  blowing  of  the  stump,  the 
burning  of  the  brush,  and  his  falling  near  a  step  are  other  occurrences 
which  illustrate  how,  in  the  mind  of  the  testator,  he  connected  events 
in  his  experience  with  his  belief  in  Spiritualism.  His  belief  in  Spir- 
itualism led  him  to  account  for  his  preservation  from  harm  by  means 
of  spiritual  guidance,  while  another  person  no  more  rational  than 
Crumbaugh,  but  who  did  not  believe  in  Spiritualism,  would  account 
for  the  same  phenomena  in  some  other  way.  The  testator  did  not 
imagine  that  he  was  in  a  field,  and  that  there  was  a  person  there 
blowing  out  stumps  with  dynamite,  and  that  a  piece  of  the  stump 
was  thrown  in  such  a  way  that  it  would  have  struck  him  if  he  had 
not  shifted  his  position;  but  there  was,  in  fact,  such  a  field,  and 
in  it  were  stumps  which  were  being  blown  out,  and  the  testator 
was  there  when  an  explosion  of  dynamite  occurred,  and  it  is  testified 
to  by  the  witness  that  a  piece  would  have  struck  the  deceased  if  he 
had  not  shifted  his  position  just  before  the  explosion.  Now,  all  that 
is  left  of  the  transaction  which  is  not  susceptible  of  proof  is  the  fact 
that  the  testator  believed  that  he  was  led  to  shift  his  position  by  his 
guiding  spirit.  To  hold  that  this  is  evidence  of  an  insane  delusion, 
when  reduced  to  its  last  analysis,  is  to  hold  that  a  belief  in  Spiritualism 
is,  in  and  of  itself,  an  evidence  of  insanity,  and  that  no  one  who  be- 
lieves in  the  articles  of  faith  as  promulgated  by  that  organization  is 
competent  to  make  a  valid  testamentary  disposition  of  his  property. 
There  is  not  in  this  record  a  scintilla  of  evidence  of  insane  delusions 
in  the  testator  outside  of  the  bare  fact  that  he  believed  in  the  general 


Ch.  3)  TBSTAMENTAKY   CAPACITY   AND   INTENT.  29 

doctrine  of  the  Spiritualist  organization.    This  is  not  insanity,  and  it 
is  no  evidence  of  a  want  of  testamentary  capacity. 

In  Whipple  v.  Eddy,  161  111.  114,  43  N.  E.  789,  this  court  passed  on 
the  question  whether  a  mere  belief  in  Spiritualism  was  evidence  of  in- 
sanity. It  was  there  said  (page  122  of  161  III,  page  792  of  43  N.  E.) : 
"The  fact  that  a  person  is  affected  with  insanity  or  labors  under  some 
delusion,  believes  in  witchcraft,  clairvoyance,  spiritual  influences,  pre- 
sentiments of  the  occurrence  of  future  events,  dreams,  mind  reading, 
etc.,  will  not  affect  the  validity  of  his  will  on  the  ground  of  insanity. 
1  Redfield  on  Wills  79,  note  9 ;  Chafin  Will  Case,  32  Wis.  557 ;  In  re 
Smith,  52  Wis.  543,  8  N.  W.  616,  9  N.  W.  665,  38  Am.  Rep.  756; 
Brown  v.  Ward,  53  Md.  376,  36  Am.  Rep.  422.  Manifestly,  a  man's 
belief  can  never  be  made  a  test  of  sanity.  When  we  leave  the  domain 
of  knowledge  and  enter  upon  the  field  of  belief,  the  range  is  limitless, 
extending  from  the  highest  degree  of  rationality  to  the  wildest  dream 
of  superstition,  and  no  standard  of  mental  soundness  can  be  based  on 
one  belief  rather  than  another.  What  to  one  man  is  a  reasonable  be- 
lief is  to  another  wholly  unreasonable,  and  while  it  is  true  that  belief 
in  what  we  generally  understand  to  be  supernatural  things  may  tend 
to  prove  insanity  under  certain  circumstances,  it  is  a  well  known  fact 
that  many  of  the  clearest  and  brightest  intellects  have  sincerely  and 
honestly  believed  in  Spiritualism,  mind  reading,"  etc. 

If  it  be  said  that  the  testator  believed  that  Bright  Eyes  and  the  spirits 
of  other  deceased  friends  appeared  and  held  communication  with  him, 
in  and  out  of  the  seance  room,  that  the  .testator  believed  in  spiritual 
photography,  and  that  he  had  pictures  of  deceased  persons  made  in 
this  way,  it  may  be  replied  that  there  is  in  this  no  departure  from  the 
usually  accepted  faith  'of  the  Spiritualistic  organization,  as  shown  by 
the  articles  of  faith  testified  to  by  Dr.  Warne,  whose  testimony  is 
wholly  uncontradicted.  It  may  be  said  that  the  testator  believed  that 
his  son,  who  died  in  infancy,  had  grown  to  manhood  in  the  spirit  land, 
and  that  there  is  no  evidence  that  Spiritualists  believe  in  progression 
or  growth  after  death.  This  point  is  not  available  to  contestants,  since 
proponents  asked  Dr.  Warne  to  state  the  belief  of  his  association  on 
this  point,  and  the  contestants  objected  and  the  objection  was  sustained. 
Contestants  will  not  be  permitted  to  profit  by  the  absence  of  evidence 
which  was  excluded  on  their  objection.     *     *     * 

Proponents  requested  the  court  to  direct  a  verdict  in  their  favor, 
which  was  refused.  If  there  was  evidence  requiring  the  court  to  sub- 
mit the  case  to  the  jury,  the  refusal  of  the  request  was  not  error.  If, 
upon  the  whole  case,  there  was  evidence  fairly  tending  to  support  con- 
.  testants'  bill,  the  motion  was  properly  denied.  After  giving  this  case 
the  careful  examination  which  its  importance  requires,  we  are  firmly 
convinced  that  there  is  no  evidence  here  even  raising  a  suspicion  in  our 
minds  that  the  testator  was  not  entirely  sane  and  as  competent  to  make 
a  will  or  transact  any  other  kind  of  business  as  the  average  business 
man.    We  have  examined  the  evidence  with  great  care,  and  when  it 


30  LAST   WILLS   AND   TESTAMENTS.  (Part  1 

is  all  summarized  and  reduced  to  its  final  results  it  only  proves  that 
Crumbaugli  was  a  believer  in  Spiritualism;  that  he  thought  that  he 
was  doing  a  philanthropic  work  for  his  friends  in  Leroy  by  leaving 
this  estate  to  establish  this  [Spiritualist]  church  and  library;  and, 
however  much  one  may  differ  from  him  as  to  the  advisability  of  such 
a  devise  that  has  nothing  to  do  with  the  legal  status  of  the  will.  If 
the  testator  had  the  capacity  to  make  the  will,  he  had  the  capacity  to 
select  the  beneficiaries.  This  he  has  done,  and  there  the  matter  must 
rest. 

The  court  erred  in  refusing  to  direct  a  verdict  for  proponents,  for 
which  the  decree  must  be  reversed,  which  is  accordingly  done,  and  the 
cause  remanded  to  the  circuit  court,  for  further  proceedings  not  in- 
consistent with  the  views  herein  expressed.    Reversed  and  remanded.^' 

13  "The  testator's  belief  in  Spiritualism  was  not  a  morbid  fancy,  rising  spon- 
taneously in  his  mind,  but  a  conviction  produced  by  evidence.  The  proofs  show 
that,  when  he  first  commenced  attending  what  are  called  'seances,'  he  was  in- 
clined to  be  skeptical ;  afterwards  his  mind  seemed  to  be  in  an  unstable  con- 
dition— he  sometimes  believed  and  at  others  doubted — and  that  it  was  not  until 
the  spirits  gave  an  extraordinary  exhibition  of  their  power,  by  printing  or 
painting  on  a  pin,  worn  by  his  mother-in-law  on  her  neck,  in  brilliant  letters, 
which  sparkled  like  diamonds,  the  word  'Dickie,'  a  pet  name  of  his  dead  wife, 
that  his  last  doubts  as  to  the  reality  of  the  manifestations  were  removed.  Be- 
lieving, as  I  do,  that  these  manifestations  were  correctly  described  by  Vice 
Chancellor  Giffard  in  Lyon  v.  Home,  L.  R.  6  Eq.  655,  G82,  when  he  called  them 
'mischievous  nonsense,  well  calculated,  on  the  one  hand,  to  delude  the  vain, 
the  weak,  the  foolish,  and  the  superstitious,  and,  on  the  other,  to  assist  the 
projects  of  the  needy  and  of  the  adventurer,'  still  it  seems  to  me  to  be  en- 
tirely clear  that  it  cannot  be  said  that  a  person  who  does  believe  in  their 
reality  is,  because  of  such  belief,  of  unsound  mind,  or  subject  to  an  insane 
delusion.  No  court  has  as  yet  so  held."  The  Vice  Ordinary,  in  Middleditch 
V.  Williams,  45  N.  J.  Eq.  726,  735,  17  Atl.  826,  4  L.  R.  A.  73S  (1889). 

"It  does  not  follow,  however,  that  one  may  not  have  such  a  faith  in  spir- 
itualism as  to  destroy  his  testamentary  capacity.  He  may  think  so  continually 
and  persistently  upon  this  subject,  as  upon  many  other  subjects,  as  to  become  " 
a  monomaniac,  incapable  of  reasoning,  where  this  subject  is  concerned.  In 
that  case  it  should  be  said  that  a  will  made  in  consequence  of  such  mono- 
mania is  void  for  lack  of  testamentary  capacitv.  Orchardson  v.  Cofield,  171 
111.  14,  49  N.  E.  197,  40  L.  R.  A.  256,  63  Am.  St.  Rep.  211  (1897).  So.  too,  a  be- 
liever in  Spiritualism  may  have  such  extraordinary  confidence  in  Spiritualistic 
comnmnications — whether  those  communications  reach  him  through  mediums 
or  are  received  by  him  as  he  believes  directly — that  he  is  impelled  to  follow 
them  blindly  and  implicitly,  his  free  agency  is  destroyed,  and  he  is  constrained 
to  do  against  his  will  what  he  is  unable  to  resist.  A  will  made  under  such  cir- 
cumstances is  obviously  not  the  will  of  testator,  and  is  therefore  not  admissi- 
ble to  probate.  We  need  not  speculate  as  to  the  ground  upon  which  this  con- 
clusion rests.  It  is  utterly  unimportant  whether  it  rests  upon  the  ground  of 
absence  of  testamentary  capacity,  or,  as  held  by  the  trial  court,  ujion  the 
ground  of  undue  influence."  Carpenter,  C.  J.,  in  6'Dell  v.  Goff.  149  ;\Iich.  152, 
158,  112  N.  W.  730,  738,  10  L.  R.  A.  (N.  S.)  989,  119  Am.  St.  Rep.  662  (1907). 
On  the  undue  influence  of  Spiritualism,  see  63  Am.  St.  Rep.  93.  94,  note.  For 
a  discussion  of  testamentary  capacity  as  affected  by  belief  in  spiritualism,  see 
10  Am.  &  Eng.  Ann.  Cas.  617,  note;  5  Prob.  Rep.  Ann.  226,  note;  8  Prob.  Rep. 
Ann.  4.5.5.  note;  13  Prob.  Rep.  Ann.  68,  note;  16  L.  R.  A.  677,  note;  15  L.  R, 
A.  (N.  S.)  674,  note. 

For  the  effect  on  testamentary  capacity  of  a  belief  In  metempsychosis,  see 
Bonard's  Will,  16  Abb.  Prac.  (N.  S.)  128  (1872) ;  in  Swedonborgianism,  see  Scott 
V.  Scott.  212  HI.  .597,  72  N.  E.  708  (1904) ;  in  faith  cure,  see  Taylor  v.  Trich, 
165  Pa.  586,  30  Atl.  10.53,  44  Am.  St.  Rep.  679  (1895) ;   in  Christian  Science,  see 


Ch.  3)  TESTAMENTARY    CAPACITY    AND   INTENT.  31 

SECTION  6.— FRAUD  AND  UNDUE  INFLUENCE  " 


WILKINSON  V.  JOUGHIN. 

(High  Court  of  Chancery,  1806.    L.  R.  2  Eq.  319.) 

William  Thompson,  who  died  in  July,  1864,  by  his  will  dated  the 
20th  of  May,  186-i,  devised  and  bequeathed  all  his  real  and  personal 
estate  to  the  plaintiff  and  the  defendant  Joughin,  whom  he  also  ap- 
pointed executors,  upon  trust  "to  permit  my  wife,  Adelaide,  to  receive 
from  my  death  the  net  annual  income  thereof  during  her  life."  And 
after  her  death  the  testator  directed  his  trustees  to  sell  his  real  estate, 
and  to  convert  and  get  in  his  personal  estate,  and  to  invest  the 
moneys  to  arise  in  trust  for  the  benefit  of  his  children;  but  if  no 
child  of  his  should  attain  the  age  of  twenty-one,  or  be  married,  then 
upon  trust  to  pay  certain  legacies;  and  as  to  the  residue,  "In  trust 
for  my  stepdaughter,   Sarah  Ward,   for  her  absolute   use.     But   in 

In  re  Brush's  Will,  35  Misc.  Rep.  G89,  72  N.  Y.  Supp.  421  (1901) ;    in  Spiritu- 
alism and  Christian  Science,  s^e  Trubey  v.  Richardson,  224  111.  136,  79  N.  E. 

592  (1906).  X.     V-    T,         A         ooo 

For  discussions  of  mental  capacity  in  general,  see  5  Prob.  Rep.  Ann.  ds^ 
note  ;  Id.,  224,  note ;  2  Prob.  Rep.  Ann.  352,  note ;  63  Am.  St.  Rep.  94-99,  note. 
On  aversion  to  relatives  as  affecting  mental  capacity  to  make  a  valid  will,  see 
117  Am.  St.  Rep.  582,  note.  And  see  Fulton  v.  Freeland,  219  Mo.  494,  118  S. 
W  12  (1909).  On  suicide  as  evidence  of  testamentary  incapacity,  see  24  L.  R. 
A.  577,  note ;  4  Wigmore  on  Evidence,  §  2500.  On  drunkenness  and  morphin- 
ism as  affecting  testamentary  capacity,  see  39  L.  R.  A.  220,  note;  Id.,  202, 
note ;  6  Prob.  Rep.  Ann.  200,  note ;  2  Am.  Prob.  Rep.  526,  note.  On  monomania 
as  affecting  testamentary  capacity,  see  1  Prob.  Rep.  Ann.  377,  note.  See,  also, 
Taylor  v.  McClintock,  87  Ark.  243,  112  S.  W.  405  (1908). 

14  "Lord  Cranworth  appears  *  *  *  to  have  regarded,  fraud  as  a  spe- 
cies of  undue  influence.  It  is  a  mere  question  of  terms ;  but  by  the  rules  of 
pleading  established  in  this  court  since  December,  1805,  fraud,  which  includes 
misrepresentation,  is  the  subject  of  a  separate  plea,  and  undue  influence  as  a 
term  used  in  a  plea  in  this  court  raises  the  question  of  coercion,  and  that  only." 
Lord  Penzance  in  Parfitt  v.  Lawless,  L.  R.  2  P.  &  D.  462,  470,  471  (1872). 

"In  strictness,  'undue  influence'  and  'fraud'  are  distinguishable.  In  one  case 
the  mind  of  the  testator  is  so  overmastered  that  another  will  is  suhstitnted 
for  his  own.  In  the  other  he  is  in  a  sense  a  free  agent,  but  is  deceived  into 
acting  upon  false  data  [citations].  But  more  often  than  otherwise  it  is  a  mere 
question  of  terms.  Something  sinister  is  involved,  which  perverts  the  tpsta- 
tor's  will  by  overcoming  his  power  truly  to  express  his  real  desires."  Burch, 
J  in  Ginter  v.  Ginter,  79  Kan.  721,  735.  736,  101  Pac.  634,  640,  22  L.  R.  A.  (N. 
S.)  1024  (1909).     See,  also,  In  re  Snowball's  Estate  (Oal.)  107  Pac.  598  (1910). 

"There  is  no  doubt  that  undue  influence  may  be  exerted  upon  a  testator, 
either  by  fraudulent  means  or  devices  or  by  physical  or  moral  coercion  prac- 
ticed upon  him  without  any  actual  deception."  Sheldon,  J.,  in  Whitcomb  v. 
Whitcomb  (Mass.)  91  N.  E.  210  (1910). 

For  discussions  of  undue  influence  as  affecting  the  validity  of  wills,  see  21 
Am.  St.  Rep.  94,  note ;  31  Am.  St.  Rep.  670,  note ;  6  Prob.  Rep.  Ann.  300,  note ; 
5  Am.  Prob.  Rep.  589,  note.  On  the  admissibility  of  declarations  of  testator, 
not  made  at  the  time  of  the  execution  of  the  wUl,  on  questions  of  undue  influ- 
ence, see  notes  in  5"  Am.  &  Eng.  Ann.  Cas.  608,  and  in  10  Am.  &  Eng.  Ann.  Cas. 
600. 


^ 


\0  ^ 


32  LAST  WILLS   AND   TESTAMENTS.  (Part   1 

case  she  shall  die  without  leaving  issue,  upon  trust  to  pay  the  same 
moneys  to  John  Wilkinson  and  my  cousin,  Anne  Hammond,  in  equal 
shares.  I  direct  that  my  wife  shall  out  of  the  income  of  my  said  estate 
maintain,  educate,  and  bring  up  my  children  until  the  age  of  twenty- 
one  years  (but  my  trustee  shall  not  be  obliged  to  see  this  direction  ful- 
filled), and  that  she  shall  receive  and  enjoy  such  income  as  her  separate 
estate,  without  the  control  or  interference  of  any  future  husband,  and 
her  receipt  to  be,  notwithstanding  coverture,  an  effectual  discharge  for 
the  same." 

The  testator  left  no  issue  him  surviving.  The,  bill  alleged  that  on 
the  15th  of  October,  1849,  Thomas  Ward  and  Adelaide  Ward  (then 
Rowntree)  were  married  at  Great  Grimsby,  and  that  the  defendant 
Sarah  Ward  was  a  child  of  that  marriage ;  and  that  on  the  20th  of 
May,  1863,  the  defendant  Adelaide  Ward  and  the  testator  went  through 
the  ceremony  of  marriage  at  Liverpool — the  defendant  Adelaide  Ward 
having  represented  herself  to  the  testator  as,  and  he  having  believed 
her  to  be,  a  widow — the  defendant  Thomas  Ward,  her  husband,  being 
then,  and  in  March,  1865,  when  the  bill  was  filed,  alive.  The  plaintiff 
submitted  to  the  judgment  of  the  court,  whether  the  defendant  Ade- 
laide Ward,  or  the  defendant  Thomas  Ward,  her  husband,  in  her  right, 
could  take  any  interest  under  the  will ;  and  also  what  interest  (if  any) 
the  defendant  Sarah  Ward  took  under  it;  and  prayed  that  the  trusts 
might  be  performed  by  the  court,  and  for  a  declaration  as  to  the  rights 
of  all  persons  interested  under  the  will,  and  for  an  account  and  in- 
quiries. The  evidence,  in  the  view  taken  of  it  by  the  court,  sustained 
the  conclusion  that  the  misrepresentation  by  Adelaide  Ward  was  wilful. 

Sir  John  Stuart,  V.  C.  In  my  opinion  the  bequest  in  favor  of 
Adelaide  Ward  is  void.  She  has  sworn  in  her  answer  that  which  has 
been  distinctly  disproved.  The  evidence  shows  that  she  imposed  in 
a  gross  manner  upon  the  testator.  Therefore,  there  must  be  a  declara- 
tion to  the  effect  that  the  bequest  to  Adelaide  Ward,  the  pretended  wife 
of  the  testator,  is  wholly  void^  and  then  there  must  be  the  usual  decree 
for  administration. 

The  right  of  the  infant,  Sarah  Ward,  seems  to  me  very  clear.  An 
attempt  has  been  made  to  show  that  inasmuch  as  the  testator  was  de- 
frauded by  the  woman  whom  he  believed  to  be  his  wife,  and  was, 
through  that  fraud,  induced  to  believe  that  her  child  was  his  step- 
daughter, the  bequest  to  her  wholly  fails.  But  in  the  case  referred  to 
of  Kennell  v.  Abbott,  4  Ves.  802,  Lord  Alvanley  took  care  to  distinguish 
between  the  cases  of  an  innocent  and  a  fraudulent  legatee,  and  in  my 
opinion  there  is  no  warrant  for  saying,  where  the  testator  knew  this 
infant  legatee  personally,  and  intended  to  benefit  her  personally,  that 
the  language  of  the  will  is  not  a  sufficient  description.  Sarah  Ward, 
therefore,  is  entitled  under  the  will,  but  I  have  some  difficulty  in  say- 
ing that  she  is  absolutely  entitled,  as  there  is  a  gift  over  in  case  she 
shall  die  under  twenty-one  years  of  age,  and  without  issue. 


Ch.   3)  TESTAMENTARY    CAPACITT   AND   INTENT.  33 

Declare  that  the  gift  to  Sarah  Ward  is  valid,  and  the  ;niestion, 
whether  absolutely  or  not,  will  be  left  open  until  the  hearing  on  further 
consideration.^" 

IB  "But  upon  general  principles  I  am  of  opinion  it  would  be  a  violation  of 
every  rule  that  ought  to  prevail  as  to  the  intention  of  a  deceased  person  if  1 
should  permit  a  man  availing  himself  of  that  character  of  husband  of  the 
testatrix,  and  to  whom  in  that  character  a  legacy  is  given,  to  take  any  part 
of  the  estate  of  a  person  whom  he  so  grossly  abused,  and  who  must  be  taken 
to  have  acted  upon  the  duty  imposed  upon  her  in  that  relative  character.  I  de- 
sire to  be  understood  not  to  determine  that,  where  from  circumstances  not 
moving  from  the  legatee  himself  the  description  is  inapplicable,  as  where  a 
person  is  supposed  to  be  a  child  of  the  testator,  and  from  motives  of  love  and 
affection  to  that  child  supposing  it  his  own,  he  has  given  a  legacy  to  it,_  and  it 
afterwards  turns  out  that  he  was  imposed  upon,  and  the  child  was  not  his  own, 
I  am  not  disposed  by  any  means  to  determine  that  the  provision  for  that  child 
should  totallv  fail ;  for  circumstances  of  personal  affection  to  the  child  might 
mix  with  it,  and  which  might  entitle  him,  tliough  he  might  not  fill  that  charac 
ter  in  which  the  legacy  is  given.  My  decision,  therefore,  totally  avoids  such 
a  point.  Neither  would  I  have  it  understood  that  if  a  testator,  in  consequence 
of  supposed  affectionate  conduct  of  his  wife,  being  deceived  by  her,  gives  her 
a  legacy,  as  to  his  chaste  wife,  evidence  of  her  violation  of  her  marriage  vow 
could  be  given  against  that.  It  would  open  too  wide  a  field.  But  this  decision 
steers  clear  of  that  point.  This  is  a  legacy  to  her  supposed  husband  and  under 
that  name.  He  was  the  husband  of  another  person.  He  had  certainly  done 
this  lady  the  grossest  injury  a  man  can  do  to  a  woman ;  and  I  am  called  upon 
now  to  determine  whether  the  law  of  England  will  permit  this  legacy  to  be 
claimed  by  him.  Under  these  circumstances  I  am  warranted  to  make  a  prece- 
dent, and  to  determine  that  wherever  a  legacy  is  given  to  a  person  under  a  par- 
ticular character,  which  he  has  falsely  assumed,  and  which  alone  can  be  sup- 
posed the  motive  of  the  bounty,  the  law  will  not  permit  him  to  avail  himself 
of  it ;  and  therefore  he  cannot  demand  his  legacy."  Sir  Richard  Pepper  Arden 
in  Kennell  v.  Abbott,  4  Ves.  802,  808,  809  (1799).  But  see  Wennlng  v.  Temple, 
144  Ind.  189,  41  N.  B.  600  (1895).  Where  the  testator  knows  that  his  "wife"  has 
a  first  husband  living  and  undivorced,  the  gift  to  her  as  wife  is  good.  In  re 
Wagstaff,  [1907]  2  Clbi.  35.  [1908]  1  Ch.  162.  So  where  testatrix  knows  that  her 
"husband"  has  a  first  wife  living.  In  re  Will  of  Donnely,  68  Iowa,  126,  26  N. 
W.  23  (1885) ;  Moore  v.  Heineke,  119  Ala.  627,  24  South.  374  (1898).  See,  also, 
Meluish  v.  Milton,  L.  R.  3  Ch.  Div.  27  (1876),  where  the  lower  court  thought 
the  testator  had  a  suspicion,  if  not  information,  that  the  woman's  husband  was 
living.  Compare  Baker's  Will,  2  Redf.  Sur.  179  (N.  Y.,  1876).  See,  also,  post, 
p.  306,  note. 

In  Howell  v.  Troutman,  53  N.  C.  304  (1860),  the  testator,  a  white  man,  being 
induced  by  his  housekeeper,  a  Avhite  woman,  to  believe  that  the  latter's  mu- 
latto child  was  his,  bequeathed  $250  to  the  housekeeper,  provided  she  would 
look  after  testator's  widow,  and  gave  the  residue  of  his  estate  to  the  child,  with 
a  gift  over  if  the  child  should  die  without  lawful  children  or  child.  The  trial 
court  charged  the  jury  that  there  was  no  evidence  of  such  influence  as  would 
invalidate  the  will,  and  the  will  was  probated.  In  sustaining  the  action  of  the 
trial  court,  the  upper  court  said:  "Supposing  that  he  did  believe  the  child 
was  his,  and  that  the  mother  of  it  told  him  so ;  there  is  not  the  slightest  testi- 
mony to  show  that  she  ever  asked  him  to  make  a  will  in  favor  of  her  and  the 
child,  or  that  she  knew,  before  the  will  was  made,  that  he  intended  to  make 
one,  or,  afterwards,  that  he  had  made  it.  *  *  *  At  most,  it  is  said  that  she 
made  him  believe  that  he  had  begotten  a  child  by  her,  which  everybody  but 
himself  could  see  was  a  mulatto.  Surely  that  alone  cannot  destroy  a  will  which 
the  mother  is  not  shown  to  have  had  the  slightest  agency  in  procuring.  *  *  * 
The  truth  is  that  the  old  man,  being  childless  by  his  wife,  took  a  strange  fancy 
to  the  child  of  his  housekeeper,  and,  whether  it  were  his  own  or  not,  he  had  a 
father's  love  for  it,  and  our  law  imposes  no  prohibition  upon  a  man  to  prevent 
him  from  bestowing  his  propertv  upon  the  object  of  his  affection."  Battle,  J., 
in  Howell  v.  Troutman,  53  N.  C.  304,  307,  308  (1860).    But  see  Ex  parte  Wallop, 

C0ST.WlLLS--3 


34  LAST   WILLS   AND    TESTAMENTS.  (Part  1 

DOE  ex  dem.  SMALL  v.  ALLEN. 

(Court  of  King's  Bench,  1799.     8  T.  R.  147.) 

Ejectment.  Evidence  in  regard  to  the  execution  of  a  will  was  offered 
by  the  defendant  and  rejected.  A  verdict  was  given  for  the  plaintiff, 
with  liberty  to  the  defendant  to  move  for  a  new  trial  in  case  the  evi- 
dence ought  to  have  been  received.  A  rule  to  show  cause  was  ob- 
tained.^^ 

Lord  Ken  YON,  C.  J.  I  think  that  this  evidence  ought  to  have  been 
received.  The  testator  having  made  one  will,  which  (is  admitted)  was 
a  good  will,  and  being  pressed  by  certain  persons  around  him  to  make 
another  will,  asked  in  the  presence  of  credible  witnesses  whether  or 
not  the  second  will  which  was  brought  to  him  to  be  executed  was  the 
same  as  the  first,  which  was  answered  in  the  affirmative.  It  turns  out 
that  it  was  different  from  the  first  will,  and  the  question  here  is  whether 
or  not  that  evidence  ought  to  be  received.  Our  decision  will  not  in  the 
least  tend  to  repeal  the  Statute  of  Frauds,  or  contradict  the  case  of  Sel- 
win  v.  Browne  [Cas.  temp.  Talb.  240  (1734)].  I  agree  that  the  con- 
tents of  a  will  are  not  to  be  explained  by  parol  evidence ;  but,  notwith- 
standing that  act,  evidence  may  be  given  to  shew  that  a  will  was  ob- 
tained by  fraud.  And  the  effect  of  the  evidence  offered  in  this  case 
was  to  shew  that  one  paper  was  obtruded  on  the  testator  for  another 
which  he  intended  to  execute. 

Gross,  J.  It  seemed  to  be  admitted  at  the  bar  that  evidence  may  be 
given  to  shew  that  one  paper  was  substituted  for  another,  and  that  I 
think  is  sufficient  to  decide  this  case.  For  the  evidence  proposed  to  be 
given  was  this:  That  when  the  testator  asked  for  a  duplicate  of  his 
former  will  the  persons  about  him  substituted  another  instead  of  it. 

Lawrence,  J.,  declared  himself  of  the  same  opinion. 

Rule  absolute. 


WINGROVE  v.  WINGROVE. 

(High  Court  of  Justice,  Probate  Division,  1885.    11  P.  D.  81.) 

The  plaintiff  as  a  legatee  propounded  a  will  dated  the  15th  of  Sep- 
tember, 18G9,  of  Elizabeth  Wingrove,  late  of  87  Long  Lane,  West 
Smithfield,  and  alleged  that  a  codicil  dated  the  9th  of  October,  1880, 
which  revoked  some  of  the  gifts  to  him,  was  procured  by  the  undue 
influence  of  the  defendants.  The  defendants  in  the  statement  of  de- 
fence denied  that  the  codicil  was  procurd  by  undue  influence,  and 

4  P.ro.  0.  C.  90  (1792),  and  Clark  v.  Fisher,  1  Paige  (N.  T.)  171.  19  Am.  Dec.  402 
(1S2S).  Com[)are  the  hohliiig  that  unrlue  influoiice  exerted  by  a  motlier  may 
vitiate  a  will  in  favor  of  her  child.  Cheney  v.  Goldy,  225  III.  .394,  80  N.  10.  2,S9, 
IIG  Am.  St.  Rep.  14.1  (1907).  Compare,  also,  Coghill  v.  Kennedy,  119  Ala.  641, 
24  South.  459  (1898). 

18  The  statement  of  facts  is  abbreviated. 


Ch.  3)  TESTAMENTARY    CAPACITY    AND   INTENT.  35 

claimed  probate  of  it  together  with  the  will.  The  acfion  had  been 
tried  by  a  common  jury,  who  found  a  verdict  for  the  plaintiff,  which 
was  subsequently  set  aside  and  a  new  trial  ordered  by  a  special  jury. 

Sir  James  Hannen  (President),  in  addressing  the  jury  said:  Gen- 
tlemen of  the  jury,  I  must  ask  your  particular  attention  to  the  ex- 
position which  I  am  about  to  give  you  of  the  law  upon  this  subject  of 
undue  influence,  for  I  find,  from  now  a  long  experience  in  this  court, 
that  there  is  no  subject  upon  which  there  is  a  greater  misapprehension. 

The  misapprehension  to  which  I  have  referred  arises  from  the  par- 
ticular form  of  the  expression.  We  are  all  familiar  with  the  use  of 
the  word  "influence";  we  say  that  one  person  has  an  unbounded  in- 
fluence over  another,  and  we  speak  of  evil  influences  and  good  influ- 
ences ;  but  it  is  not  because  one  person  has  unbounded  influence  over 
another  that  therefore  when  exercised,  even  though  it  may  be  very 
bad  indeed,  it  is  undue  influence  in  the  legal  sense  of  the  word.  To 
give  you  some  illustrations  of  what  I  mean,  a  young  man  may  be 
caught  in  the  toils  of  a  harlot,  who  makes  use  of  her  influence  to  in- 
duce him  to  make  a  will  in  her  favor,  to  the  exclusion  of  his  relatives. 
It  is  unfortunately  quite  natural  that  a  man  so  entangled  should  yield 
to  that  influence  and  confer  large  bounties  on  the  person  with  whom  he 
has  been  brought  into  such  relation;  yet  the  law  does  not  attempt  to 
guard  against  those'  contingencies.  A  man  may  be  the  companion  of 
another,  and  may  encourage  him  in  evil  courses,  and  so  obtain  what  is 
called  an  undue  influence  over  him,  and  the  consequence  may  be  a  will 
made  in  his  favor.  But  that  again,  shocking  as  it  is,  perhaps  even 
worse  than  the  other,  will  not  amount  to  undue  influence.^ ^ 

To  be  undue  influence  in  the  eye  of  the  law  there  must  be — to  sum 
it  up  in  a  word — coercion.  It  must  not  be  a  case  in  which  a  person 
has  been  induced  by  means  such  as  I  have  suggested  to  you  to  come 
to  a  conclusion  that  he  or  she  will  make  a  will  in  a  particular  person's 
favor,  because  if  the  testator  has  only  been  persuaded  or  induced  by 
considerations  which  you  may  condemn,  really  and  truly  to  intend  to 
give  his  property  to  another,  though  you  may  disapprove  of  the  act, 
yet  it  is  strictly  legitimate  in  the  sense  of  its  being  legal.  It  is  only 
when  the  will  of  the  person  who  becomes  a  testator  is  coerced  into 
doing  that  which  he  or  she  does  not  desire  to  do,  that  it  is  undue  in- 
fluence. 

The  coercion  may  of  course  be  of  different  kinds,  it  may  be  in  the 
grossest  form,  such  as  actual  confinement  or  violence,  or  a  person  in 
the  last  days  or  hours  of  life  may  have  become  so  weak  and  feeble,  that 
a  very  little  pressure  will  be  sufficient  to  bring  about  the  desired  result, 

IT  Compare  remarks  by  Lord  Oi-anworth,  O.,  In  Boyse  v,  Rossboroush,  6  H. 
L.  Gas.  2,  47-i8  (1S57).  See,  also,  Giiiter  v.  Giiiter,  79  Kan.  721,  101  I'ao.  G34, 
22  L.  R.  A.  (N.  S.)  1024  (1900).  "Influence  may  be  desrading  and  pernicious, 
and  yet  not  undue  iullueuce  in  the  eye  of  the  law.  The  leading  autliority  on 
the  subject  is  the  judgment  of  Cranworth,  L.  C,  in  Boyse  v.  Rossboro"gh." 
Lord  Macnaghten,  in  Baudains  v.  Richardson,  [190G]  A,  a  169,  184. 


36  LAST  WILLS  AND   TESTAMENTS.  (Part  1 

and  it  may  even  be,  that  the  mere  talking  to  him  at  that  stage  of  illness 
and  pressing  something  upon  him  may  so  fatigue  the  brain,  that  the 
sick  person  may  be  induced,  for  quietness'  sake,  to  do  anything.  This 
would  equally  be  coercion,  though  not  actual  violence. 

These  illustrations  will  sufficiently  bring  home  to  your  minds  that 
even  very  immoral  considerations  either  on  the  part  of  the  testator, 
or  of  some  one  else  offering  them,  do  not  amount  to  undue  influence 
unless  the  testator  is  in  such  a  condition,  that  if  he  could  speak  his 
wishes  to  the  last,  he  would  say,  "This  is  not  my  wish,  but  I  must  do  it." 

If  therefore  the  act  is  shown  to  be  the  result  of  the  wish  and  will 
of  the  testator  at  the  time,  then,  however,  it  has  been  brought  about — 
for  we  are  not  dealing  with  a  case  of  fraud — though  you  may  con- 
demn the  testator  Jor  having  such  a  wish,  though  you  may  condemn 
any  person  who  has  endeavored  to  persuade  and  has  succeeded  in 
persuading  the  testator  to  adopt  that  view — still  it  is  not  undue  in- 
fluence. 

There  remains  another  general  observation  that  I  must  make,  and 
it  is  this,  that  it  is  not  sufficient  to  establish  that  a  person  has  the  pow- 
er unduly  to  overbear  the  will  of  the  testator.  It  is  necessary  also  to 
prove  that  in  the  particular  case  that  power  was  exercised,  and  that  it 
was  by  means  of  the  exercise  of  that  power,  that  the  will  such  as  it  is, 
has  been  produced.^* 

18  "Mere  suspicion,  however  strong,  Is  not  of  Itself  enough  to  warrant  a  find- 
ing of  fraud  and  undue  influence.  On  the  other  hand,  it  is  not  necessary  that 
there  should  be  direct  evidence  of  fraud  and  undue  influence  in  order  to  jus- 
tify such  a  finding,  though  it  often  happens  that  such  evidence  is  produced. 
It  is  of  the  nature  of  fraud  and  undue  influence  that  .they  may  be  exercised  in 
indirect  and  underhand  ways,  difficult  to  be  come  at,  and  to  be  judged  of  only 
by  their  results.  The  will  of  a  testator  may  be  coerced  and  fraud  committed 
upon  him  in  various  ways,  and  what  would  constitute  fraud  and  coercion  in 
one  case  might  not  in  another.  There  is  no  hard  and  fast  rule.  A  person  may 
be  so  situated,  so  weals  and  feeble,  or  so  dependent  on  another,  for  instance, 
that  mere  talking  to  him  or  pressing  a  matter  upon  him  would  so  affect  him 
that,  for  the  sake  of  quietness,  he  might  do  that  which  he  did  not  want  to  do, 
and  which,  if  his  health  had  been  better,  or  his  will  stronger,  he  would  not 
have  done.  Such  a  case  would  constitute  or  might  be  found  to  constitute  coer- 
cion as  trulv  as  force  or  duress."  Morton,  J.,  in  Hoffman  v.  Hoffman,  192  Mass. 
416.  419,  78  N.  E.  492,  493^94  (1906). 

"The  word  'undue,'  when  used  to  qualify  influence,  has  the  legal  meaning 
of  'wrongful.'  Hence  'undue  influence'  means  a  wrongful  influence.  *  *  • 
An  influence  exerted  over  another,  which  deprives  him  of  his  free  agency  and 
makes  the  will  speak  the  will  of  another  and  not  that  of  the  testator,  cannot 
be  other  than  wrongful,  however  acquired.  The  influence  of  affection  or  par- 
tiality for  a  child,  coupled  with  persuasion  or  solicitation,  is  not  wrongful  in 
the  legal  sense  of  the  term,  but  would  be  if  It  went  to  the  extent  of  depriving 
the  testator  of  his  free  agency."  Vickers,  J.,  in  Dowie  v.  Sutton,  227  111.  183, 
197,  81  N.  E.  39.J,  401,  118  Am.  St.  Rep.  266  (1907). 

"The  fraud,  force,  or  undue  influence  that  will  suffice  to  set  aside  a  will  must 
be  such  as  to  overcome  the  free  volition  or  conscious  judgment  of  the  testator, 
and  to  substitute  the  wicked  purposes  of  another  instead,  and  must  be  the 
efficient  cause,  without  which  the  obnoxious  disposition  would  not  have  been 
made."  Wolverton,  J.,  In  In  re  Holman's  Estate,  42  Or.  345,  358,  70  Pac.  908, 
913  (1902).  See  Larabee  v.  Larabee,  240  111.  576,  88  N.  E.  1037  (1909) ;  Hart  v. 
Hart  (Tex.  Civ.  App.)  110  S.  W.  91  (1908). 


Ch.  8)  TB8TAMENTART   CAPACITY   AND  INTENT,  37 

HACKER  V.  NEWBORN. 
(Upper  Bench,  1654.     Style,  427.) 

If  a  Man  make  his  Will  in  his  Sickness,  by  the  over-importuning 

of  his  Wife,  to  the  end  he  may  be  quiet,  this  shall  be  said  to  be  a 
Will  made  by  constraint,  and  shall  not  be  a  good  Will.  By  Roll,  Chief 
Justice,  In  a  Tryal  at  the  Bar  in  the  Case  of  one  Hacker  and  New- 
born, Mich.  1654.^» 


In  re  STORER'S  WILL. 
STORER  V.  ZIMMERMAN. 

(Supreme  Court  of  Minnesota,  1881.     28  Minn.  9,  8  N.  W.  827.) 

GiLFiLLAN,  C.  J.^*  *  *  *  The  contestant  offered  to  prove  the 
amount  of  property  the  testator  had  at  the  date  of  the  will,  which  proof 
was  excluded.  This  is  alleged  as  error.  It  is  insisted  that  the  proof 
would  have  shown  there  was  great  inequality  in  the  distribution  of  his 
property  among  those  naturally  the  objects  of  his  bounty,  and  that 
that  fact,  in  connection  with  evidence  tending  to  show  impaired  mind 
and  memory,  which  evidence  was  given,  is  evidence  of  undue  influ- 
ence on  the  part  of  those  who  seem  to  be  favored  by  the  will. 

Where  there  is  evidence,  independent  of  any  question  of  inequality 
in  the  will,  tending  to  show  acts  of  undue  influence  over  the  testator 
to  procure  him  to  make  the  will,  on  the  part  of  those  who  appear  to 

19  "Keeping  peace  in  one's  family  can  scarcely  be  an  unlawful  or  immoral 
object.  There  would  seem  to  be  do  legal  objection  to  a  testator's  devising  his 
property  for  that  sole  purpose,  if  he  deliberately  concludes  of  his  own  free  will 
that  such  is  his  best  policy.  Of  course,  he  must  not  have  been  coerced  into  mak- 
ing it.  *  *  *  The  right  to  freely  dispose  of  one's  property  must  include  the 
right  to  do  so  in  such  a  way  as  to  maintain  the  family  peace,  and  even  the 
making  of  that  one's  sole  object."  Hastings,  C,  in  Davidson  v.  Davidson,  2 
Neb.  (Unof.)  90,  99,  96  N.  W.  409,  411,  412  (1901).  On  the  coercion  of  a  promise 
made  to  a  deceased  husband,  see  Henderson  v.  Jackson,  138  Iowa,  326,  111  N. 
W.  821  (1907). 

"To  make  a  good  will,  a  man  must  be  a  free  agent.  But  all  Influences  are  not 
unlawful.  Persuasion,  appeals  to  the  affections  or  ties  of  kindred,  to  a  senti- 
ment of  gratitude  for  past  services,  or  pity  for  future  destitution,  or  the  like, 
these  are  all  legitimate,  and  may  be  fairly  pressed  on  a  testator.  On  the  other 
hand,  pressure  of  whatever  character,  whether  acting  on  the  fears  or  the  hopes, 
if  so  exerted  as  to  overpower  the  volition  without  convincing  the  judgment,  is 
a  species  of  restraint  under  which  no  valid  will  can  be  made.  Importunity  or 
threats,  such  as  the  testator  has  not  the  courage  to  resist,  moral  command  as- 
serted and  yielded  to  for  the  sake  of  peace  and  quiet,  or  of  escaping  from  dis- 
tress of  mind  or  social  discomfort,  these,  if  carried  to  a  degree  in  which  the  free 
'  play  of  the  testator's  judgment,  discretion,  or  wishes,  is  overborne,  will  consti- 
tute undue  influence,  though  no  force  is  either  used  or  threatened.  In  a  word, 
a  testator  may  be  led  but  not  driven ;  and  his  will  must  be  the  offspring  of  his 
own  volition,  and  not  the  record  of  some  one  else's,"  Sir  J.  P.  WUde,  in  Hall 
V.  Hall,  L.  R.  1  P.  &  D.  481  (1868). 

20  Part  only  of  the  opinion  is  given. 


38  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

be  preferred,  evidence  that  the  distn.biitij3iiJ&-grossly  uaeqitaLaiay.  i>e- 
given  in  aid  of  such  evidence  of  undue  influence,  to  show  indeed  the 
result,  as  well  as  strengthen  the  evidence,  of  undue  influence.  But_ 
mere  inequality,  however  great,  in  the  distribution  of  the  property 
among  children  or  relatives,  is  no  evidence  of  undue  influence,  nor  is 
it  made  such  by  evidence  of  impaired  mind.  If  it  were  evidence  from 
which  a  jury  might  find  undue  influence  to  avoid  the  will,  the  issue 
practically  presented  to  the  jury  in  every  case  of  the  kind  would  be: 
Is  the  will  such  as  the  jury,  if  in  the  testator's  circumstances,  would 
have  made?  Few  wills  could  stand  if  such  were  the  test.  Any  man 
of  sufficient  capacity,  where  his  power  to  dispose  of  his  property  is 
not  limited  by  statute,  has  a  right,  in  disposing  of  it  by  will,  to  use  his 
own  judgment  and  consult  his  own  preferences  without  regard  to  how 
such  disposition  may  be  approved  or  disapproved  by  others.^*  *  *  * 
Judgment  affirmed. 


In  re  TYNER'S  ESTATE. 

TYNER  et  al.  v.  VARIAN  et  al. 

(Supreme  Court  of  Minnesota,  1906.    97  Minn.  181,  106  N.  W.  808.) 

Elliott,  J.  This  is  an  appeal  from  a  judgment  of  the  district  court, 
sustaining  the  will  of  John  Tyner  after  the  probate  court  had  refused 
to  admit  it  to  probate. 

John  Tyner  died  testate,  November  10,  1903,  at  the  age  of  87,  leav- 
ing as  heirs  at  law  three  sons,  Richard,  Thomas,  and  John,  one  daugh- 
ter, Rebecca  O'Leary,  the  children  of  two  deceased  daughters,  and  his 
wife  Margaret.  The  will  in  question  was  executed  July  2,  1891.  The 
property  consists  of  160  acres  of  land  in  Dakota  county,  Minn.,  and 
personal  property  of  about  the  value  of  $4,500.  Under  the  will  Rich- 
ard, Thomas,  and  John  receive  $2.50  each.  To  the  wife,  Margaret,  is 
given  "all  the  rest,  residue  and  remainder  of  my  property,  both  real 
or  personal,  or  mixed,  of  which  I  may  die  seised  or  possessed,  to  have 
and  to  hold  for  and  during  the  term  of  her  natural  life,  and  to  use  as 
she  may  deem  best,  and  I  do  hereby  authorize  my  said  wife  to  dispose 
of  any  of  the  personal  effects  and  convert  the  same  into  money  and  to 
use  so  much  of  the  money  as  may  be  necessary  for  her  personal  sup- 
port." 

After  the  death  of  the  wife,  Rebecca  O'Leary,  the  daughter,  and 
Mary  A.  Bird>  a  niece,  are  given  $500  each  "out  of  my  moneys  and 
credits,  if  so  much  remains  after  the  payment  of  all  claims  and  ex- 

21  See  Morgan  v.  Morgan,  30  App.  D.  C.  430  (1908);  Donnan  v.  Donnan,  236 
111.  341,  sr,  X.  E.  270  (1908) ;  Winn  v.  Grier,  217  Mo.  420,  117  S.  W.  48  (1909). 
On  the  eff(?ft  of  uniiatiiral  or  unreasonable  disposition  of  property  on  the  ques- 
tion of  undue  influence,  see  6  L.  R.  A.  (N.  S.)  202,  note;  22  L.  R.  A.  (N.  S.) 
1024,  note;  7  Am.  &  Eug.  Ann.  Cas.  891,  note;  13  Am.  &  Eng.  Ann,  Cas.  1044, 
note. 


Ch.  3)  TESTAMENTARY    CAPACITY   AND   INTENT. 

penses  of  the  last  sickness  of  myself  and  wife."  Other  small  bequests 
were  made,  but  they  are  not  important  as  far  as  this  appeal  is  con- 
cerned. After  the  death  of  Margaret  Tyner,  all  the  land  owned  by 
John  Tyner  is  given  to  Richard  and  William  Varian,  the  nephews  of 
the  wife,  Margaret.  The  result  is  that  Margaret  Tyner  is  given  the 
use  of  the  land  and  of  all  the  personal  property  during  her  life,  and  at 
her  death  the  land  goes  to  her  nephews,  to  the  entire  exclusion  of  the 
children  of  the  testator.  The  contestants,  the  children  of  the  testator, 
contend  that  the  will  is  the  result  of  undue  influence  exercised  by  Mar- 
garet Tyner,  the  wife  of  the  testator. 

1.  The  right  to  dispose  of  property  by  will  is  the  creature  of  positive 
law,  but  it  is  carefully  guarded  and  protected.  A  person  who  has  tes- 
tamentary capacity  may  make  such  a  disposition  of  his  property  as 
conforms  to  his  -ideas  of  justice  and  propriety.  He  may  be  guided  by 
lofty  and  beneficent  motives,  or  by  sordid  prejudice  and  personal  dis- 
like. The  justice  and  righteousness  of  his  final  dealings  with  those 
who  are  the  natural  objects  of  his  bounty  and  toward  whom  he  has  as- 
sumed solemn  duties  and  obligations  are  to  be  determined  by  the  final 
judge  of  all  human  conduct.  Subject  to  very  limited  statutory  re- 
strictions, the  power  of  testamentary  disposition  is  absolute. 

But  a  valid  will  must  be  the  result  of  the  voluntary  act  of  the  testator, 
and  not  merely  express  the  will  of  some  other  person.  The  wife,  and 
other  possible  objects  of  his  bounty,  may  properly  influence  his  actions  ; 
but  this  influence  must  not  be  so  great  as  to  destroy  his  power  of  mW. 
The  words  "undue  influence"  carry  with  them  their  own  limitation. 
The  influence  must  not  be  undue.  To  constitute  undue  influence  the 
testator  must  be  so  influenced  by  persuasion,  pressure,  or  fraudulent 
contrivance  that  he  does  not  act  intelligently  or  voluntarily  and  is  sub- 
ject to  the  will  and  purpose  of  another.  It  may  be  exerted  through 
threats,  fraud,  importunity,  or  the  silent,  resistless  power  which  the 
strong  often  exercise  over  the  weak  or  infirm.  It  must  be  sufficient  to 
destroy  his  free  agency  and  substitute  the  will  of  another  for  that  of 
the  testator.  Entreaty,  importunity,  or  persuasion  may  be  employed, 
as  may  appeal  to  the  memory  of  past  kindnesses  and  the  calls  of  the 
distressed.  Mere  suggestions  or  advice  addressed  to  the  understand- 
ing or  judgment  of  the  testator  never  constitute  undue  influence; 
neither  does  solicitation,  unless  the  testator  is  so  worn  out  with  im- 
portunities that  his  will  gives  way.  Robinson  v.  Robinson,  203  Pa. 
401,  53  Atl.  253. 

The  fact  that  the  will  is  inofficious,  harsh,  and  unjust  is  not  in  itself 
evidence  that  it  was  induced  by  undue  influence.  Mitchell  v.  Mitchell, 
43  Minn.  73,  44  N.  W.  885.  Nor  is  the  fact  that  the  beneficiary  under 
the  instrument  had  special  opportunities  to  exert  undue  influence 
over  the  testator.  But  when  there  is  evidence,  independent  of  any 
question  of  inequality  in  the  will,  tending  to  show  acts  of  undue  in- 
fluence over  the  testator  to  procure  the  will  on  the  part  of  those  who 
appear  to  have  been  preferred,  the  fact  that  the  distribution  of  property 


40  LAST   WILLS   AND   TESTAMENTS.  (Part  1 

is  grossly  unequal  and  unjust  may  be  received  to  strengthen  the  evi- 
dence of  undue  influence.  In  re  Storer's  Will,  38  Minn.  9,  8  N.  W. 
827 ;  Nelson's  Will,  39  Minn.  204,  39  N.  W.  143 ;  Mitchell  v.  Mitchell, 
43  Minn.  73,  44  N.  W.  885 ;  Schmidt  v.  Schmidt,  47  Minn.  451,  50  N. 
W.  598 ;  In  re  Hess'  Will,  48  Minn.  504,  51  N.  W.  614,  31  Am.  St. 
Rep.  665;  Clarity  v.  Davis,  92  Minn.  60,  99  N.  W.  363;  Fisher  v. 
Sperl,  94  Minn.  421,  103  N.  W.  502 ;  Mackall  v.  Mackall,  135  U.  S. 
167,  10  Sup.  Ct.  705,  34  L.  Ed.  84 ;    Manatt  v.  Scott,  106  Iowa,  203, 

76  N.  W.  717,  68  Am.  St.  Rep.  293. 

Generally  the  burden  of  showing  that  a  will  was  procured  by  undue 
influence  rests  upon  those  who  assert  the  fact;  but  when  the  contest- 
ants have  made  a  prima  facie  case,  by  the  production  of  evidence  from 
which  the  presumption  of  undue  influence  arises,  the  burden  is  then 
upon  the  proponents  to  show  that  the  instrument  is  the  will  of  the  testa- 
tor. It  is  not  very  material  whether  we  say  that  in  such  a  case  the 
burden  shifts,  or  that  the  evidence  produced,  aided  by  the  presump- 
tion which  arises  therefrom,  is  evidence  sufficient  to  make  a  prima  facie 
case.  Cofim  v.  U.  S.,  156  U.  S.  432,  15  Sup.'  Ct.  394,  39  L.  Ed.  481 ; 
Elliott,  Evidence,  vol.  1,  §  92 ;  Thayer,  Prelim.  Treatise  on  Evidence, 
p.  551.  What  is  meant  is  that  a  point  is  reached  when  the  contestant 
prevails  unless  the  proponent  assumes  the  obligations  of  going  for- 
ward with  his  evidence.  In  re  Sperl's  Estate,  supra,  and  cases  there 
cited;  Small  v.  Champeny,  102  Wis.  61,  78  N.  W.  407;  Doyle  v. 
Welch,  100  Wis.  24,  75  N.  W.  400;    Disch  v.  Timm,  101  Wis.  179, 

77  N.  W.  196 ;  Rivard  v.  Rivard,  109  Mich.  98,  66  N.  W.  681,  63  Am. 
St.  Rep.  566 ;  Fisher  v.  Bishop,  108  N.  Y.  25,  15  N.  E.  331,  2  Am.  St. 
Rep.  357,  note;    Clarity  v.  Davis  (Minn.)  supra.^^ 

In  the  light  of  these  general  principles  we  proceed  to  a  review  of 
the  evidence.  It  is  not  possible  to  set  out  all  the  testimony;  but  a  very 
brief  summary  will  be  sufficient  to  show  that  the  contestants  fulfilled 
all  the  requirements  necessary  to  make  a  prima  facie  case  of  undue 
influence,  and  that  it  was  not  overthrown  by  the  evidence  offered  by 
the  respondent.    John  Tyner's  first  wife  died  in  1866,  and  within  two 

*2  "In  the  proof  of  undue  influence,  negativing  the  capacity  of  a  testator, 
there  is  a  difference  of  judicial  opinion,  as  in  the  case  of  insanity,  but  here  it 
goes  back  to  the  main  burden  of  persuasion ;  1.  e.,  by  one  opinion,  the  volun- 
tariness of  the  testator's  act  is  a  part  of  the  proponent's  case,  and  with  the 
jury  he  has  the  risk  of  non-persuasion ;  by  the  other  view,  the  fact  of  undue 
Influence  Is  treated  as  In  the  nature  of  a  defensive  plea  of  the  contestant,  and 
therefore  to  be  proved  as  a  T>art  of  his  case."    4  Wigmore  on  Evidence,  §  2502. 

"One  who  Is  familiar  with  the  volume  of  litigation  which  is  now  flooding  the 
courts  cannot  fail  to  be  attracted  by  the  fact  tliat  actions  to  set  aside  wills  are 
of  freqtient  occurrence.  In  such  actions  the  testator  cannot  be  heard,  and  very 
trifling  matters  are  often  pressed  upon  the  attention  of  the  court  or  jury  as  evi- 
dence of  want  of  mental  capacity  or  of  the  existence  of  undue  influence.  What- 
ever rule  may  obtain  elsewhere,  we  wish  it  distinctly  understood  to  be  the  rule 
of  the  federal  courts  that  the  will  of  a  person  found  to  be  possessed  of  sound 
mind  and  memory  Is  not  to  be  set  aside  on  evidence  tending  to  show  only  a  pos- 
sibility or  suspicion  of  undue  influence.  The  expressed  Intention  of  the  testator 
should  not  be  thwarted  without  elenr  reason  therefor."  Brewer,  J.,  in  Beyer  v 
Le  Fevre.  18G  U.  S.  114,  12.5,  126,  22  Sup.  Ct  765,  770,  46  L,.  Ed.  1080. 


Ch.  3)  TESTAMENTARY   CAPACITY   AND   INTENT.  41 

months  thereafter  he  married  Margaret  Varian.  When  the  second 
wife  came  into  the  family,  she  found  four  children,  all  under  18  years 
of  age.  Almost  from  the  beginning  the  family  life  was  unhappy.  She 
evidently  took  a  dislike  to  the  children,  and  soon  began  a  systematic 
effort  to  drive  them  from  the  home.  In  this  she  was  ultimately  suc- 
cessful. The  children  were  frequently  whipped  by  the  father  at  her 
request.  They  were  not  allowed  the  food  which  was  supplied  to  the 
other  members  of  the  family.  They  were  deprived  of  proper  and  nec- 
essary clothing  and  schooling  and  seem  to  have  been  generally  ill- 
treated.  One  of  the  boys  returned  home  on  two  occasions  and  was  re- 
fused admission  by  his  stepmother.  Another  farmed  the  land  for  two 
years,  but  finally  left  because  of  trouble  with  Margaret.  A  few  years 
later  the  father  sent  for  him,  and  he  made  another  attempt  to  run  the 
farm,  with  the  same  result.  She  disliked  them,  and  was  determined 
that  they  should  not  be  at  home  with  their  father.  It  clearly  appears 
that  the  boys  were  driven  from  home  by  the  continuous  ill  treatment 
of  Margaret  Tyner.  During  the  last  illness  of  John  Tyner  his  wife 
would  not  permit  reports  of  his  condition  to  be  sent  to  his  absent  chil- 
dren, and  she  prevented  the  news  of  his  death  reaching  them  until  it 
was  too  late  for  them  to  attend  the  funeral.  There  is  no  evidence 
that  the  children  were  to  blame,  and  in  view  of  the  age  and  relation 
of  the  parties  it  should  not  be  presumed.  John  Tyner  was  an  illiterate 
man,  unable  to  read  or  write.  He  seems  to  have  had  some  natural 
capacity  ^or  acquiring  and  retaining  money,  which  he  concealed  about 
the  premises  in  old  tomato  cans.  The  testimony  shows  that  Mar- 
garet was  much  the  stronger  character,  and  generally  had  her  way 
about  household  and  business  affairs.  She  had  some  education,  and 
her  husband,  as  is  usual  in  such  cases,  overestimated  the  importance 
of  a  little  book  learning.  He  was  so  deaf  that  it  was  necessary  for 
her  to  be  with  him  when  he  transacted  any  business  and  do  most  of 
the  talking.  He  seems  to  have  relied  largely  upon  her  for  his  informa- 
tion and  trusted  to  her  judgment.  She  was  persistent,  energetic,  and 
resourceful.  Like  her  husband,  she  was  in  the  habit  of  drinking,  and 
they  frequently  went  to  town  and  got  drunk  together. 

The  property  and  its  final  disposition  seems  to  have  been  continu- 
ally in  her  mind,  and  from  the  first  she  determined  that  the  children 
should  never  have  the  land.  She  told  the  neighbors  that  the  land  had 
been  promised  to  her  brother's  children.  She  kept  everlastingly  talking 
to  her  husband  about  the  worthlessness  of  the  boys,  and  accused  them 
of  being  lazy,  thieving,  and  shiftless.  Her  purpose,  it  may  fairly  be 
assumed,  was  to  so  prejudice  his  mind  against  them  that  he  would  cast 
them  off  and  leave  his  property  to  others  of  her  choosing.  She  told  the 
neighbors  that  the  children  should"  not  have  the  land.  When  the  will 
was  made  Margaret  was  with  the  testator,  making  suggestions  and 
doing  part  of  the  talking.  After  it  was  made  she  expressed  her  ap- 
proval of  its  contents,  and  from  that  time  until  the  death  of  John  Ty- 
ner she  exerted  her  influence  to  prevent  him  from  becoming  recon- 


42  LAST    WILLS   AND   TESTAMENTS.  (Part  1 

ciled  to  the  chridren  and  changing  the  will.  She  said  "the  will  was 
made  the  way  she  wanted  it,  and  was  not  going-  to  be  changed."  It 
is  apparent  that  she  earnestly  desired  to  influence  her  husband  in  the 
making  of  his  will,  and  that  she  was  induced  to  do  this  by  her  dislike 
of  the  children  and  her  desire  to  have  the  land  go  to  her  own  relatives. 
She  was  also  to  some  extent  personally  benefited  by  the  will,  as  she 
received  all  the  law  would  give  her,  and  in  addition  thereto  she  was 
given  complete  control  over  all  the  personal  property  during  her  life. 

But  the  ultimate  question  is  whether  her  influence  actually  induced 
the  will.  It  is  certain  that  it  was  exerted  for  the  purpose  of  controlling 
the  making  of  the  will  and  the  dfsposition  of  the  property.  John  Ty- 
ner  stated  to  disinterested  parties  that  Margaret  would  not  permit 
him  to  leave  the  land  to  the  children.  He  told  the  witness  Flannery 
that  he  gave  the  boys  nothing,  because  Margaret  did  not  want  them 
to  have  anything.  He  also  told  Mrs.  Joego  that  he  was  not  going  to 
give  any  of  the  land  to  his  children,  because  Margaret  "would  not  al- 
low him  to."  The  same  statement  was  made  to  Mary  Tyner.  All  of 
this  evidence  stands  uncontradicted.  Margaret  was  present  at  the 
trial,  but  was  not  called  as  a  witness.  John  Tyner's  wife  and  children 
were  the  natural  beneficiaries  of  the  property,  and  there  is  nothing  to 
show  that  the  children  were  not  deserving  of  his  consideration.  The 
attempt  to  show  that  they  had  improperly  left  home  and  neglected  their 
father  failed  completely.  There  being  evidence  of  this  character  in 
the  case,  the  inofficious,  harsh,  and  inequitable  character  of  the  will 
may  also  be  taken  into  consideration.  The  Varians,  who  received  the 
homestead,  are  not  of  the  blood  of  the  testator,  but  are  the  nephews 
of  his  wife.  As  far  as  the  record  shows  they  had  never  done  anything 
for  John  Tyner,  except  farm  the  land  for  a  time,  nor  was  he  under 
any  obligation  to  them.  The  evidence  thus  presents  a  much  stronger 
case  than  appeared  in  Clarity  v.  Davis,  93  Minn.  60,  99  N.  W.  3G3, 
where  Chief  Justice  Start,  speaking  for  the  court,  said :  "In  view  of 
these  admitted  facts  and  the  relation  existing  between  the  legatee  and 
the  testator,  the  claim  of  the  appellant  that  the  burden  was  upon  the 
respondent  to  show  by  clear  and  satisfactory  evidence  that  the  testator 
was  mentally  competent  to  make  his  will  and  that  its  execution  was 
not  procured  by  undue  influence  and  fraud  is,  as  it  must  be,  conceded 
by  the  respondent." 

Judgment  reversed,  and  new  trial  ordered.^' 

23  "It  Is  impossible  to  define  or  describe  with  precision  and  exactness  wliat 
is  undue  influence,  what  the  quality  and  the  extent  of  the  power  of  one  mind 
over  another  must  be  to  make  it  undue,  in  the  sense  of  the  law,  when  exerted 
in  makiuR  a  will.  Like  the  question  of  insanity,  it  is  to  some  dejjree  open  and 
vatnie,  and  must  be  decided  by  the  application  of  sound  princij)les  and  good 
sense  to  the  facts  of  each  given  case.  Lynch  v.  Clements,  24  N.  J.  E<i.  431 
(1874).  But  the  influence  exercised  over  a  testator,  whicii  the  law  regards  as 
undue  or  illegal,  must  be  such  as  to  destroy  his  free  agency;  but  no  matter 
'aow  little  the  influence,  if  the  free  agency  is  destroyed,  it  \-itiates  the  act  which 
is  the  result  of  it.  •  •  •  The  undue  influence  is  not  often  the  subject  of 
direct  proof.     It  can  be  shown  by  all  the  facts  and  circumstances  surruuuduig 


Ch.  3)  TESTAMENTARY    CAPACITY   AND   INTENT.  43 

In  re  SMITH'S  WILL. 
(Court  of  Appeals  of  New  York,  18S4.    95  N.  T.  516.) 

Appeal  from  a  judgment  of  the  General  Term  of  the  Supreme  Court, 
in  the  third  judicial  department,  entered  upon  an  order  made  Janu- 
ary 23,  1883,  which  affirmed  a  decree  of  the  surrogate  of  Ulster  coun- 
ty, admitting  to  probate  the  will  of  Eliza  M.  Smith,  deceased. 

The  proponent,  William  Lawton,  was  the  chief  beneficiary  under  the 
will  of  September  13,  1880,  propounded  for  probate.  He  was  a  lawyer, 
he  drew  the  will,  and  had  been  the  legal  adviser  of  the  decedent,  for 
whom  he  had  drawn  several  wills  prior  to  the  one  in  question.  The 
will  was  drawn  and  executed  on  the  day  of  its  date,  during  the  last 
sickness  of  the  testatrix,  who  died  five  days  thereafter.  She  had  no 
heirs  or  next  of  kin,  and  at  the  time  of  her  death  was  more  than  75 
years  of  age.  The  probate  of  the  will  was  contested  by  Eliza  J.  Hamil- 
ton on  the  ground  of  the  incapacity  of  the  testatrix  and  of  fraud  and 
undue  influence.  The  contestant  was  a  legatee  in  three  wills  executed 
by  the  testatrix,  the  first  dated  February  13,  1878,  the  second  July  13, 
1880,  and  the  third  July  18,  1880.  By  the  first  and  second  wills  she 
was  made  residuary  legatee.  By  the  third  she  was  given  a  legacy  of 
$3,000,  and  by  the  same  will  other  legacies  to  the  amount  of  $2,500. 
The  proponent  was  made  residuary  legatee.  The  wills  of  July  13, 
1880,  and  July  18,  ISSO,  were  drawn  by  the  proponent.  By  the  will 
in  controversy  the  testatrix  gave  to  St.  John's  Church,  Kingston,  a 
legacy  of  $500 ;  to  Mrs.  Josephine  Peters,  $500 ;  to  George  L.  Lawton, 
the  son  of  proponent,  $2,000;  to  Walter  S.  Hamilton,  her  stock  in 
the  Lake  Shore  Railroad;  and  to  the  proponent  (whom  she  made 
executor)  the  residue  of  her  estate.    *    *    * 

Andrews,  J.^*  Undue  influence,  which  is  a  species  of  fraud,  when 
relied  upon  to  annul  a  transaction  inter  partes,  or  a  testamentary  dis- 
position, must  be  proved,  and  cannot  be  presumed.  But  the  relation 
in  which  the  parties  to  a  transaction  stand  to  each  other,  is  often  a  ma- 
terial circumstance  and  may  of  itself  in  some  cases  be  sufficient  to  raise 
a  presumption  of  its  existence.  Transactions  between  guardian  and 
ward,  attorney  and  client,  trustee  and  cestui  que  trust,  or  persons  one 

the  testator,  the  nature  of  the  will,  his  family  relations,  the  condition  of  his 
health  and  mind,  his  dependency  upon  and  subjection  to  the  control  of  the  per- 
son supposed  to  have  wielded  the  influences,  the  opportunity  and  disposition 
of  the  person  to  wield  it,  and  the  acts  and  declarations  of  such  person."  Earl, 
J.,  in  Rollwagen  v.  Rollwagen,  63  N.  Y.  .504,  519  (1876).  See  In  re  Hoffmann's 
Estate,  151  Mich.  595,  115  N.  W.  690  (1908). 

"Where  there  is  evidence  tending  to  show  senile  dementia,  the  jury  might 
be  justified  in  inferring  undue  influence  from  circumstances  which  would  not 
otherwise  justify  such  an  inference ;  but  the  fact  of  exercising  undue  influ- 
ence must  not  be  left  to  mere  inference  from  opportunity,  interest,  and  mental 
weakness."  McClaiu,  J.,  in  Re  Overpeck's  Will  (Iowa)  120  N.  W.  1044,  3046 
(1909). 

2*  Part  only  of  the  statement  of  facts  and  of  the  opinion  is  given. 


44  LAST   WILLS   AND   TESTAMBNTS.  (Part  1 

of  whom  is  dependent  upon  and  subject  to  the  control  of  the  other, 
are  illustrations  of  this  doctrine.  Dealings  between  parties  thus  sit- 
uated, resulting-  in  a  benefit  conferred  upon,  or  an  advantage  gained  by, 
the  one  holding  the  dominating  situation,  naturally  excite  suspicion, 
and  when  the  situation  is  shown,  then  there  is  cast  upon  the  party 
claiming  the  benefit  or  advantage,  the  burden  of  relieving  himself  from 
the  suspicion  thus  engendered,  and  of  showing  either  by  direct  proof 
or  by  circumstances  that  the  transaction  was  free  from  fraud  or  un- 
due influence,  and  that  the  other  party  acted  without  restraint  and 
under  no  coercion,  or  any  pressure  direct  or  indirect,  of  the  party  ben- 
efited. This  rule  does  not  proceed  upon  a  presumption  of  the  invalid- 
ity of  the  particular  transaction,  without  proof.  The  proof  is  made 
in  the  first  instance  when  the  relation  and  the  personal  intervention 
of  the  party  claiming  the  benefit  is  shown.  The  law  is  not  so  imprac- 
ticable as  to  refuse  to  take  notice  of  the  influence  of  greed  and  selfish- 
ness upon  human  conduct,  and  in  the  case  supposed  it  wisely  inter- 
poses by  adjusting  the  quality  and  measure  of  proof  to  the  circum- 
stances, to  protect  the  weaker  party  and,  as  far  as  may  be,  to  make  it 
certain  that  trust  and  confidence  have  not  been  perverted  or  abused. 
Nesbit  V.  Lockm.an,  34  N.  Y.  167 ;  Cowee  v.  Cornell,  75  N.  Y.  91,  31 
Am.  Rep.  428;   Marx  v.  McGlynn,  88  N.  Y.  357  [1882]. 

The  rule  to  which  we  have  adverted  seems,  however,  to  be  confined 
to  cases  of  contracts  or  gifts  inter  vivos,  and  does  not  apply,  in  all  its 
strictness  at  least,  to  gifts  by  will.  It  has  been  held  that  the  fact 
that  the  beneficiary  was  the  guardian,  attorney,  or  trustee  of  the  de- 
cedent does  not  alone  create  a  presumption  against  a  testamentai^y  gift, 
or  that  it  was  procured  by  undue  influence.  Coffin  v.  Coffin,  23  N.  Y. 
9,  80  Am.  Dec.  235;  Post  v.  Mason,  91  N.  Y.  539,  43  Am.  Rep.  689; 
Parfitt  v.  Lawless,  L.  R.  2  Pro.  &  Div.  462.  The  mere  fact,  therefore, 
that  the  proponent  was  the  attorney  of  the  testatrix  did  not,  according 
to  the  authorities  cited,  create  a  presumption  against  the  validity  of 
the  legacy  given  by  her  will.  But  taking  all  the  circumstances  to- 
gether— the_  fiduciary  relation,  the  change  of  testamentary  intention, 
the  age,  andLmgllta]  an3[  pli\  >iinl  condition  of  the  d'  C' d  lil,  the  fact 
that  the- proponent,  was  the  draftsman  and  principal  beneficiary  under 
the_wjjj_j^nd  tpnk-  an  active  part  in  procuring  its  execution,  and  that 
the  testatrix  acted  witliout  independent  advice — a  case  was  made  which 
r'?^uTred  explanation,  and  which  imposed  upon  the  proponent  the  bur- 
den, of  satis£ylng~the  court  that  the  will  was  the  free,  untrammeled, 
and  intelligent  expression  of  the  wishes  and  intention  of  the  testa- 
trix. See  note  to'Huguenin  v.  Bassley,  2  W.  &  T.  Leading  Cas.  in 
Eq.  1156;   Rcdfield  on  Wills,  515,  and  cases  cited. ^" 

«B  There  Is  some  conflict  of  authority  on  the  question  of  whether  the  rule 
as  to  gifts  inter  vivos  should  be  applied  to  wills.  See  1  Woerner's  Auiorirau 
Law  of  Admin.  (2d  Kd.)  §  .".2.  For  the  ar-jrumcnt  a.irainst  applyini?  it  to  wills, 
see  Parfitt  v.  I^awless.  L.  R.  2  P.  &  D.  4G2  (1S72).  In  Lockvvood  v.  Lockwood, 
80  Conn.  513,  522,  09  Atl.  8,  11  (1908),  the  court  recognizes  and  enforces  the 


Ch.  3)  TESTAMENTARY   OAPAOITT   AND   INTENT.  4S 

The  surrogate  reached  a  conclusion  adverse  to  the  contestant  upon 
both  grounds  upon  which  the  validity  of  the  will  was  questioned.  He 
found  that  the  testatrix  had  testamentary  capacity  and  that  the  will 
was  not  procured  by  any  fraud  or  undue  influence.  We  think  there 
was  evidence  to  support  the  conclusion  of  the  surrogate  upon  both 
points.  But  upon  neither  was  the  case  free  from  doubt.  We  do  not 
intend  to  enter  into  a  discussion  of  the  facts.  We  have  reached  the 
conclusion  that  the  judgment  ought  to  be  reversed  for  errors  in  the 
admission  of  evidence  on  the  question  of  undue  influence,  which  was 
calculated  to,  and  which  we  cannot  say  may  not  have  had  a  material 
influence  upon  the  determination  of  the  surrogate.    *    *    * 

The  judgment  of  the  General  Term  and  of  the  surrogate  is  there- 
fore reversed.^* 

rule  that,  while  the  opponents  of  a  will  have  in  general  to  show  undue  Influ- 
ence affirmatively,  yet  "in  certain  cases — where  the  natural  object  of  the  testa- 
tor's bounty  is  excluded  from  participation  in  his  estate,  where  a  stranger  sup- 
plants children,  and  the  will  is  in  favor  of  the  lawyer  drawing  and  advising  as 
to  its  provisions,  or  the  guardian  having  charge  of  his  person  and  estate,  or  of 
the  person  occupying  a  clearly  analogous  position  of  trust — there  is  imposed 
upon  the  proponents  of  the  will,  upon  the  trial  of  the  issue  thus  raised,  the 
obligation  of  disproving  by  a  clear  preponderance  of  evidence  the  affirmation 
of  the  actual  exercise  of  undue  influence  by  such  beneficiaries  of  the  will." 
See,  also,  Byrnes  v.  Gibson  (N.  J.  Prerog.)  68  Atl.  756  (1908). 

2  6  See  In  re  Barney's  Will,  70  Vt.  352,  40  Atl.  1027  (1898);  Snodgrass  v. 
Smith,  42  Colo.  60,  94  Pac.  312  (1908) ;  In  re  Cooper's  Will  (N.  J.  Prerog.)  71 
Atl.  676  (1909).  See,  also,  Downey  v.  Murphey,  18  N.  0.  82  (1834),  where  the 
reason  for  the  difference  in  the  attitude  of  the  ecclesiastical  courts  and  that 
of  the  common-law  courts  is  explained. 

"The  fact  that  an  inference  unfavorable  to  the  validity  of  a  will,  which  may 
be  drawn  when  it  appears  that  a  person  who  was  dependent  upon  or  subject 
to  the  control  of  another  (Woodbury  v.  Woodbury,  141  Mass.  329,  5  N.  E.  275, 
55  Am.  Rep.  479  [1886])  makes  a  will  in  that  other's  favor,  may  be  rebutted 
by  showing  that  the  transaction  was  fair  and  honest,  does  not  change  the  ques- 
tion of  whether  or  not  it  has  been  rebutted  from  one  of  fact  to  one  of  law. 
Whenever  facts  that  would  sustain  the  will  are  put  in  evidence,  together  with 
other  facts  from  which  an  inference  unfavorable  to  its  validity  may  be  drawn, 
the  question  of  whether  the  unfavorable  inference  should  be  drawn,  and,  if  so, 
whether  it  has  been  rebutted,  are  both  questions  of  fact,  for  they  are  the  same 
questions  which  arise  on  every  motion  to  set  a  verdict  aside  as  against  the 
weight  of  evidence ;  and  in  this  state  the  questions  arising  on  such  a  motion 
are  questions  of  fact."  Young,  J.,^  in  Edgerly  v.  Edgerly,  73  N.  H.  407,  408,  62 
Atl.  716,  717  (1905).  For  a  discussion  of  the  proper  rule  where  a  will  is 
drawn  by  a  beneficiary  under  it,  see  71  Am.  Dee.  129,  note ;  3  Am.  Prob.  Rep. 
52,  note ;  15  Am.  &  Eng.  Ann.  Cas.  551,  note.  On  the  effect  of  gifts  by  will  to 
one  standing  in  fiduciary  relationship  to  the  testator,  see  21  Am.  St.  Rep.  94, 
note ;    5  Am.  Prob.  Rep.  590,  note ;    6  Prob.  Rep.  Ann.  300,  note. 

That  the  law  raises  a  rebuttable  presumption  of  undue  influence  when  a  ward 
makes  a  will  in  favor  of  her  guardian  is  asserted  in  Re  Cowdry's  Will,  77  Vt. 
859,  60  Atl.  141  (1905). 

In  Dudley  v.  Gates,  124  Mich.  448,  86  N.  W.  959  (1901),  in  affirming  the  cor- 
rectness of  the  trial  count's  charge  to  the  jury  on  the  question  of  the  burden 
of  proof,  the  upper  court  said:  "We  do  not  think  that  this  charge,  taken  as  a 
whole  could  have  misled  the  jury.  They  were  correctly  told  that  the  circum- 
stance that  the  will  was  drawn  by  proponent's  husband  was  a  circumstance 
which  raised  a  suspicion,  and  they  could  not  have  heard  this  charge  without 
understanding  that  it  was  the  duty  of  the  proponent  to  remove  this  suspicion 
by  evidence."     See,  also,  In  re  Miller's  Estate,  31  Utah,  415,  88  Pac.  338  (1906) 


46  LAST   WILLS   AND    TESTAMENTS.  (Part  1 

MAIN  V.  RYDER. 

SAME  V.  MINER. 
(Supreme  Court  of  Pennsylvania,  1877.     84  Pa.  217.) 

Mr.  Justice  Mercur.^^  *  *  *  3_  'pj^g  fact[s]  that  the  testator 
lived  with  a  woman  to  whom  he  was  not  legally  married,  and  that 
she  and  their  illegitimate  offspring  were  the  devisees  of  much  of  his 
property,  are  urged  as  creating  a  presumption  in  law  that  the  will  was 
executed  under  improper  influences.  The  case  of  Dean  et  al.  v.  Neg- 
ley  et  al.  [41  Pa.  312,  80  Am.  Dec.  620]  is  cited  to  support  this  view. 
The  opinion  of  the  judge  in  that  case  expressly  declares  that  the  court 
does  not  decide  such  relations  create  a  presumption  of  law  of  undue 
influence;  but  leaves  the  effect  thereof  as  a  question  of  fact  for  the 
jury.  To  the  same  effect  is  the  case  of  Rudy  v.  Ulrich  et  al.,  69  Pa. 
177,  8  Am.  Rep.  238.  No  clearly  defined  weight  can  be  given  to  such 
testimony.  Much  must  depend  on  the  particular  circumstances  of 
each  case.    It  is  an  element  undoubtedly  to  be  considered. 

It  appears  that  Miner  had  been  entirely  separated  from  his  lawful 
wife  and  children  for  nearly  thirty-five  years.  So  far  as  it  appears 
none  of  them  had  met  him  in  all  that  time.  She  had  not  sought  any 
reconciliation  of  her  marital  relations,  nor  they  of  their  filial  rela- 
tions. They  all  resided  in  another  state.  She  died  in  April,  1869.  For 
more  than  twenty-six  years  the  testator  and  the  woman  named  in  his 
will  as  his  wife,  had  lived  and  cohabited  together  as  husband  and  wife. 
During  all  that  time  they  so  recognized  each  other.  She  had  borne  him 
several  children.  To  them  he  also  devised  a  portion  of  his  estate.  A 
separation  for  more  than  thirty  years  from  his  legitimate  children  nat- 
urally weakened  his  parental  affection  towards  them.  It  needed  no 
special  effort  on  the  part  of  his  other  family,  with  which  he  had  lived 
more  than  a  quarter  of  a  century,  to  make  them  the  objects  of  his 
bounty.  The  court  fairly  submitted  the  fact  of  his  illicit  associations 
to  the  jury  to  consider  in  determining  the  question  of  undue  influence. 
On  the  whole  record  we  discover  no  sufficient  cause  for  reversal ;  there- 
fore, judgment  affirmed  in  each  case. 


28 


27  The  statement  of  facts  Is  omitted,  and  part  only  of  the  opinion  Is  given. 

2  8  See  Sa.xton  v.  Krunim,  107  Md.  30.3,  GS  Atl.  IO.jO.  17  L.  R.  A.  (N.  S.)  477, 
12(5  Am.  St.  Kep.  303  (1008).  On  the  effect  of  meretricious  relations  l)et\veon 
testator  and  beneficiary  on  the  validity  of  a  devise  or  bequest,  see  17  L.  R. 
A.  (N.  S.)  477,  note;  13  I'rob.  Rep.  Ann.  455,  note;  and  21  Am.  St.  Rep.  00, 
100,  note.  Compare  the  pift  inter  vivos  case  of  Piatt  v.  Elias,  ISG  N.  Y.  374, 
79  X.  K.  1,  11  L.  R.  A.  (N.  S.)  .^.54,  110  Am.  St.  Rep.  558  (1006). 

"We  are  of  opinion  thnt  •  •  *  an  intluence  when  exercised  by  a  wife 
might  be  lawful  and  lef,'itimate,  but  which,  If  exercised  by  a  woman  occupying 
merely  an  adulterous  relation  to  the  testator,  mijiht  be  undue  and  illegitimate." 
Worden,  O.  J..  In  Kessinger  v.  Ko.ssingor,  37  Ind.  .341,  343  (1871).  See,  also,  Mc^ 
Clure  V.  McClure,  80  Tenn.  173,  G  S.  W.  44  (1887). 

"The  existence  of  an  Illicit  relation  between  a  deceased  testator  and  his  mis- 
tress will  not  give  rise  to  a  presumption  of  undue  influence  as  a  matter  of  law  : 


Ch.  3)  TESTAMENTARY   CAPACITY    AND    INTENT. 


47 


HAYES  V.  MOULTON  et  al. 

(Supreme  Judicial  Court  of  Massachusetts.  Worcester,  1907.     194  Mass.  157, 

80  N.  E.  215.) 

Appeal  by  Lizzie  A.  Hayes,  executrix,  from  a  decree  of  the  pro- 
bate court  disallowing  the  will  of  one  Susan  H.  West,  an  aunt  of  ap- 
pellant. When  the  will  was  made  Susan  H.  West  was  77  years  of 
ag-e.  The  will  was  made  on  June  28,  1904,  and  testatrix  died  July 
26,  1904.  On  June  13,  1904,  testatrix  sent  for  appellant  and  asked 
her  to  come  to  her.  A  day  or  two  later  testatrix  stated  to  the  appel- 
lant that  she  had  sent  for  her  to  fix  up  her  property,  and  asked  the 
appellant  what  she  should  do.  The  appellant  replied  that  she  should 
advise  dividing  it  equally  between  the  nephews  and  nieces  that  the  tes- 
tatrix thought  the  most  of.  The  testatrix  replied  that  was  just  what 
she  did  not  want  to  do,  as  she  did  not  wish  to  have  her  property  sold, 
whereupon  the  appellant  said  that,  if  her  aunt  wished,  she  would  keep 
it  just  as  it  was  and  rent  it.  Subsequently  the  aunt  executed  the  will 
giving  the  property  to  the  appellant.  In  the  superior  court,  before 
Judge  John  A.  Aiken,  the  jury  sustained  the  will,  and  respondents  ex- 
cepted. 

The  eleventh  request  for  instructions  was  as  follows :  "A  will  which 
is  different  from  the  previously  expressed  purpose  of  the  testatrix, 
and  which  is  different  from  what  it  would  have  been  if  she  had  been 
in  full  possession  of  her  faculties  and  had  acted  under  independent  ad- 
vice, should  be  set  aside."    The  court  refused  to  give  this. 

The  twelfth  request  was  as  follows:  "The  question  of  undue  in- 
fluence and  mental  capacity  cannot  be  separated,  where  the  testatrix 
was  of  advanced  age  and  suffering  from  a  disease  affecting  her  brain 
and  vital  powers."    This  request  was  refused. 

The  nature  of  the  other  requests  referred  to  in  the  opinion  is  stated 
in  the  opinion. 

Sheldon,  J.^®  *  *  *  f  j^g  eleventh  request  could  not  have  been  giv- 
en in  the  form  asked  for.  The  fact  that  a  will  differs  from  the  previ- 
ously expressed  purpose  of  the  testatrix,  or  from  what  it  would  have 
been  if,  besides  being  in  full  possession  of  her  faculties,  she  had  acted 
under  independent  advice,  does  not  require  it  to  be  set  aside.  She  had 
the  right  to  change  her  mind  and  to  select  her  own  advisers.    And  the 

but  undue  influence  is  more  readily  inferred  in  case  of  a  will  made  in  favor  of 
a  mistress  than  in  the  case  of  a  will  in  favor  of  a  wife.  The  existence  of  the 
relation  is  a  circumstance  to  be  considered  by  the  jury,  along  with  the  other 
facts  in  the  case."  Magruder,  J.,  in  Smith  v.  Henliue,  174  111.  184,  196,  197,  51 
N.  E.  227,  231  (1898).  See,  also,  Snell  v.  Weldon,  239  111.  279,  87  N.  E.  1022 
(1909)  ;  Weston  v.  Hanson,  212  Mo.  248,  111  S.  W.  44  (1908).  That  such  may 
be  the  rule,  although  prior  to  the  will  the  testator  marries  his  mistress,  see 
Reichenbach  v.  Ruddach,  127  Pa.  5G4,  18  Atl.  432  (1889).  But  the  period  of  the 
illicit  relationship  before  marriage  may  he  too  remote  to  have  any  weight. 
Fulton  V.  Freeland,  219  Mo.  494,  118  S.  W.  12  (1909). 
29  Part  only  of  the  opinion  is  given. 


48  LAST   WILLS  AND  TESTAMENTS.  (Part  1 

jury  were  sufficiently  told  that  the  will  could  not  be  sustained  unless 
the  petitioner  proved  that  the  testatrix  was  of  sound  and  disposing 
mind  and  memory.^"     *     *    * 

It  would  not  have  helped  the  jury  to  state  to  them  the  abstract  prop- 
osition of  law  contained  in  the  twelfth  request.  It  is  true  of  course,  as 
argued  by  the  respondents,  that  a  person  may  have  sufficient  capacity 
to  make  a  will  if  let  alone  and  yet  not  be  of  sufficient  capacity  to  resist 
the  pressure  upon  him  of  strong  influence;  and  the  question  whether 
the  use  of  such  influence  is  lawful  or  not  often  may  depend,  and  per- 
haps in  this  case  did  depend,  upon  the  condition  of  mind  and  body  of 
the  person  upon  whom  it  is  exercised.  Dexter  v.  Codman,  148  Mass. 
421,  424,  19  N.  E.  517;  Bacon  v.  Bacon,  181  Mass.  18,  22,  62  N.  E. 
990,  92  Am.  St.  Rep.  397.  But  that  is  not  what  the  judge  was  asked 
to  say  to  the  jury.    He  had  a  right  to  refuse  this  request.    *    *    ♦ 

Exceptions  overruled. 


Appeal  of  HARRISON. 

(Supreme  Court  of  Errors  of  Connecticut,  1880.    48  Conn.  202.) 

Appeal  from  the  decree  of  probate  court  approving  the  will  of  Ed- 
ward Harrison,  deceased,  brought  to  the  superior  court  in  New  Haven 
county,  and  tried  to  the  jury  before  Hitchcock,  J.  The  jury  returned 
a  verdict  setting  aside  the  will,  and  the  appellees  moved  for  a  new 
trial  for  error  in  the  rulings  and  charge  of  the  court,  and  on  the 
ground  that  the  verdict  was  against  the  evidence.  The  case  is  suf- 
ficiently stated  in  the  opinion. 

Loom  IS,  J.'^  This  appeal  was  from  the  decree  of  the  New  Haven 
probate  court,  approving  the  will  of  Edward  Harrison,  late  of  New 
Haven,  deceased. 

The  testator  was  twice  married.  The  appellant  is  a  son  by  the 
first  wife.  The  testator's  last  wife  and  his  four  children  by  her  sur- 
vive him;  and  to  them  the  will  gives  all  his  property,  to  be  equally 
divided,  subject  however  to  a  bequest  to  one  Ann  Naughton,  a  serv- 
ant in  the  family,  of  an  amount  sufficient  to  make  her  share  equal  to 
each  of  the  other  shares.  To  this  Ann  Naughton,  the  appellant  at- 
tributes an  undue  influence  over  the  testator  in  the  making  of  his  will, 
which  rendered  it  invalid. 

»o  "It  Is  true  that,  where  a  will  Is  charpred  to  have  been  executed  through 
undue  iutluence,  the  declarations  of  the  testator,  made  before  its  execution,  are 
admissible  by  way  of  rebuttal  to  show  his  intention  as  to  the  disposition  of  his 
propertj-,  upon  the  ground  that  a  will  made  in  confoi'inity  with  such  declnra- 
tions  is  more  likely  to  have  been  executed  without  undue  inlluence  than  if  its 
terms  are  contrary  to  such  declarations.  Rut  the  declarations  thus  admissible 
are  those  which  are  in  harmony  with  the  provisions  of  the  will  actually  made, 
and  not  those  which  are  opposed  to  such  provisions."  Per  Curiam,  in  Waters 
V.  Waters.  222  111.  20,  .35.  78  N.  E.  1,  4,  113  Am.  St.  Rep.  359  (1906). 

«>  Part  only  of  the  opinion  is  given. 


Ch.  3)  TISTAMENTART    CAPACITY   AND   INTKlfT.  .  49 

The  verdict  of  the  jury  sustained  the  claim  of  the  appellant  and  the 
entire  will  was  set  aside.  The  question  now  comes  before  this  court 
for  review  by  the  appellees'  motion  for  a  new  trial,  predicated  on  three 
grounds — namely:  That  the  verdict  was  against  the  evidence,  and 
that  the  court  erred  in  its  instructions  to  the  jury,  and  that  its  rulings 
as  to  the  admissibility  of  evidence  were  erroneous. 

The  consideration  of  the  first  question  is  unnecessary,  as  the  other 
grounds  are  sufficient  to  require  the  granting  of  a  new  trial. 

The  appellees  requested  the  court  to  charge  the  jury:  "That  a  will 
may  be  void  in  part  and  valid  in  part;  that  if  the  jury  should  find  that 
the  legacy  given  to.  Ann  Naughton  by  the  provisions  of  the  will  was 
obtained  by  her  undue  influence,  then  the  legacy  only  would  be  void, 
and  not  the  remaining  provisions  of  the  will,  unless  the  jury  should 
further  find  that  the  undue  influence  extended  to  the  other  provisions 
of  the  will."  But  the  court  refused  so  to  charge,  and  on  this  point 
instructed  the  jury  as  follows:  "It  is  true  that  a  will  may  be  void  in 
part,  and  in  all  other  respects  be  valid;  but,  as  this  case  stands,  the 
question  of  the  partial  validity  of  the  will  is  not  presented,  and  has 
not  been  tried.  The  executor  and  all  the  parties  claiming  under  the 
will  are  made  parties  by  service  of  order  of  notice  to  this  appeal  [to 
the  superior  court  from  the  probate  court].  All  have  appeared,  and 
have  been  fully  heard  by  evidence,  on  the  question  raised  by  the  rea- 
sons. No  specific  question,  by  way  of  reasons  for  the  appeal,  needed 
to  be  presented ;  but  such  reasons  having  been  filed  attacking  the  will 
as  a  whole,  the  evidence,  on  both  sides,  having  been  directed  to  that 
sole  point,  and  the  trial  having  proceeded  throughout,  up  to  the  ar- 
gument, solely  on  that  question,  the  will,  on  such  proceedings,  musi 
be  sustained  or  be  rejected  as  a  whole." 

That  the  request  of  the  appellees  embodies  an  accurate  statement  of 
the  law  is  shown  by  many  authorities.  In  Trimlestown  v.  D'Alton  et 
al.,  1  Dow.  &  Clark,  85,  it  was  held  that  "where  an  undue  influence 
is  exercised  over  the  mind  of  a  testator  in  making  his  will,  the  provi- 
sions in  the  will  in  favor  of  the  person  exercising  that  influence  are 
void;  but  the  will  may  be  good  as  far  as  respects  other  parties;  so 
that  a  will  may  be  valid  as  to  some  parts  and  invalid  as  to  others ;  may 
be  good  as  to  one  party  and  bad  as  to  another."  So  in  Florey's  Ex- 
ecutors V.  Florey,  24  Ala.  241,  it  was  held  that  "fraud  or  undue  in- 
fluence in  procuring  one  legacy  does  not  invalidate  other  legacies  which 
are  the  result  of  the  free  will  of  the  testator,  but  if  the  fraud  or  un- 
due influence  affects  the  whole  will,  though  exercised  by  one  legatee 
only,  the  whole  will  is  void."  So  in  1  Redfield  on  Wills  (4th  Ed.)  p. 
519,  §  20,  it  is  said  that  "It  is  undoubtedly  true  that  a  will  may  be  void 
in  part  and  not  in  all  its  provisions ;  or  it  may  be  void  as  to  one  legatee 
and  not  as  to  others." 

Further  citations  are  quite  unnecessary,  if  indeed  any  were  re- 
quired ;  for  there  was  no  controversy  in  the  court  below  on  this  point. 
Cost.  Wills— 4 


50  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

But  the  court,  while  acknowledging  the  law  as  claimed  by  the  appel- 
lees, refused  to  allow  them  the  benefit  of  it  in  the  case  on  trial,  upon 
the  idea  that  the  question  as  to  the  partial  validity  of  the  will  was  not 
in  issue,  and  that  it  was  too  late  to  make  the  claim  upon  argument. 

In  this  respect  the  court  erred.  The  issue  was  as  to  the  fact  of  un- 
due influence,  and  also  and  necessarily  as  to  its  nature,  effect  and  ex- 
tent. 

Even  where  the  pleadings  are  of  the  most  technical  character  the 
greater,  of  necessity,  includes  the  less.  A  charge  of  murder  involves 
manslaughter  as  well.  In  ejectment,  where  the  pleadings  have  sole 
reference  to  a  specified  tract  of  land  as  an  entirety,  any  part  within  the 
boundaries  may  be  recovered  without  the  rest.  So  that,  if  tested  by 
the  strictest  rules,  the  court  was  wrong.  But  the  technical  rules  of 
pleading  do  not  apply  to  issues  on  the  trial  of  the  validity  of  a  will. 
Reasons  of  appeal  are  not  necessary  to  form  an  issue,  but  when  filed 
they  constitute  a  notice  to  the  adverse  party  of  the  matter  relied  upon. 
St.  Leger's  Appeal  from  Probate,  34  Conn.  434,  91  Am.  Dec.  735. 

The  interests  of  dift'erent  legatees  are  by  law  separate  and  distinct. 
The  widow  and  children  had  a  clear  right  to  have  the  jury  pass  upon 
the  question,  whether  the  will  of  the  testator  was  not  entirely  free  from 
undue  influence  as  to  them  and  their  legacies,  and  whether  the  undue 
influence  had  anything  to  do  with  the  exclusion  of  the  appellant  from 
a  share  in  the  estate.  There  was  evidence  tending  to  show  that  the 
undue  influence,  if  any,  might  have  begun  and  ended  with  Ann  Naugh- 
ton,  which  the  jury  ought  to  have  been  permitted  to  consider.  The 
question  as  to  the  effect  of  the  undue  influence,  as  shown  by  the  evi- 
dence, was  properly  made  in  the  argument.    *    *    * 

A  new  trial  is  advised.^'' 


SECTION  7.— MISTAKE 


GIFFORD  v.  DYER. 

(Supreme  Court  of  Rhode  Island,  1852.    2  R.  I.  09,  57  Am.  Dec.  70S.) 

This  was  an  appeal  from  a  decree  of  the  court  of  probate  of  Little 
Compton,  proving  and  approving  the  last  will  and  testament  of  Abigail 
Irish.  The  will  was  dated  December  4,  1850,  and  the  testatrix  died 
December  6,  1850.  After  several  bequests  of  small  sums  to  the  chil- 
dren of  Robin  Gifford  and  to  others,  she  gives  and  bequeaths  the  rest 

■2  See.  to  the  same  effect,  In  re  Welsh.  1  Redf.  Sur.  238  (N.  Y. ;  1849) ;  Stend- 
man  v.  Steadman  (Pa.)  14  .\tl.  40G  (1888);  Old  Colony  Trust  Co.  v.  Bailev,  2<)2 
.Mass.  2S;5,  .S,S  N.  R  808  (1909):  Sumner  v.  Staton  (N.  C.)  Go  S.  E.  902  (1909). 
f'ouiuare  lu  re  Cooper's  Will  (N.  J.)  71  Atl.  G7G.  GSO  (1909). 


Ch,  3)  TESTAMENTARY   CAPACITY   AND   INTENT.  51 

and  residue  of  her  property,  one  half  to  John  Dyer,  who  was  her 
brother-in-law,  and  the  other  half  to  her  two  nephews,  Jesse  and 
Alexander  Dyer.  Robin  Gifford,  the  only  child  of  the  testatrix,  was 
not  mentioned  in  the  will.  It  appeared  in  evidence,  that  at  the  date  of 
the  will,  Robin  Gifford  had  been  absent  from  home,  leaving  a  family, 
for  a  period  of  ten  years,  unheard  from ;  that  all  the  neighbors  con- 
sidered him  dead,  and  that  his  estate  had  been  administered  upon  as  of 
a  person  deceased.  The  scrivener  who  drew  the  will,  testified  as  fol- 
lows :  "After  I  had  read  the  will  to  her,  she  asked  if  it  would  make  any 
difference  if  she  did  not  mention  her  son.  I  asked  if  she  considered 
him  living.  She  said  she  supposed  he  had  been  dead  for  years ;  she 
said,  if  it  would  make  any  difference  she  would  put  his  name  in,  for 
they  will  break  the  will  if  they  can.  I  think  that  was  the  expression 
she  used.  I  think  she  said  what  she  had  given  to  her  grandchildren 
was  in  lieu  of  what  he  would  have,  but  am  not  positive.  I  think  her 
son  left  in  1841,  and  was  not  heard  of  to  my  knowledge.  She  was 
speaking  of  a  home  at  Mr.  Dyer's  and  said,  what  she  had  given  him 
would  pay  him  well.  She  said  her  grandchildren  had  not  been  to  see 
her  while  she  was  sick."  It  appeared  that  the  testatrix  had  resided 
with  John  Dyer  for  some  time  previous  to  her  death. 

Greene,  C.  J.  It  is  very  apparent  in  the  present  case,  that  the  tes- 
tatrix would  have  made  the  same  will,  had  she  known  her  son  was 
living.     She  did  not  intend  to  give  him  anything,  if  living. 

But  if  this  were  not  apparent  and  she  had  made  the  will  under  a 
mistake  as  to  the  supposed  death  of  her  son,  this  could  not  be  shown 
dehors  the  will.  The  mistake  must  appear  on  the  face  of  the  will,  and 
it  must  also  appear  what  would  have  been  the  will  of  the  testatrix  but 
for  the  mistake.  Thus,  where  the  testator  revokes  a  legacy,  upon  the 
mistaken  supposition  that  the  legatee  is  dead,  and  this  appears  on  the 
face  of  the  instrument  of  revocation,  such  revocation  was  held  void. 
Campbell  v.  French,  3  Vesey,  331. 


WAITE  V.  FRISBIE  et  al.  (two  cases). 

(Supreme  Court  of  Minnesota,  1891.    45  Minn.  361,  47  N.  W.  10G9.) 

GiLEiLLAN,  C.  J.^^  This  is  a  contest  over  the  will  of  Josephine  O. 
Frisbie  presented  for  probate.  *  *  *  Qne  ruling  at  the  trial 
involved  the  question  whether,  on  the  evidence,  there  was  a  case  upon 
which  a  finding  in  favor  of  the  will  could  be  sustained.  That  was  a 
request,  refused  by  the  court,  that  the  jury  be  instructed  to  find  a  ver- 
dict in  favor  of  contestants.  After  a  careful  examination  of  the  evi- 
dence, we  think  the  request  ought  to  have  been  granted.  Assuming 
the  instrument  to  have  been  signed  by  the  deceased  or  by  another  by 
her  express  direction,  as  required  by  the  statute,  still  the  instrument 


83 


Part  only  of  tlie  opinion  is  given. 


52  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

is  not  such  an  expression  of  her  wishes  as  to  be  entitled  to  be  regarded 
as  her  will.  The  circumstances  were  somewhat  peculiar.  Mrs.  Fris- 
bie  was  very  ill  and  weak,  so  much  so  as  to  be  unable  to  speak,  or  to 
indicate  her  wishes  unless  by  gestures  at  the  time  of  and  for  some 
minutes  before  the  signing,  and  at  the  time  of  giving  directions  for  the 
will  she  could  barely  speak.  She  was  in  a  dying  condition,  and  died 
within  about  10  minutes  after  the  signing.  It  is  evident  that  when  dic- 
tating what  she  desired  put  in  the  will,  and  while  it  was  being  prepared, 
and  when  presented  to  her  for  execution,  she  was  supposed  to  be  about 
to  die.  In  such  circumstances  very  great  care  is  required  to  make  sure 
that  the  instrument  really  expresses  the  will  of  the  person  signing, 
and  not  merely  the  inferences  of  the  person  drafting  it,  or  of  the  by- 
standers, as  to  what  the  party's  wishes  are.  Stating  the  evidence  as 
strongly  as  possible  in  favor  of  the  will,  about  an  hour  and  a  quarter 
before  she  died  Mrs.  Frisbie  communicated  to  Mrs.  Wiser,  who  was 
with  her  and  remained  with  her  to  the  end,  her  desire  to  make  a  will, 
and  the  disposition  she  desired  to  make  of  her  property,  and  Mrs. 
Wiser  stated  these  to  Dr.  Frisbie,  the  husband  of  deceased,  and  he 
wrote  out  accordingly  as  it  was  stated  to  him.  The  instrument  he 
prepared  in  the  form  of  a  will,  except  the  concluding  clauses,  contained 
five  items,  the  first  four  making  minor  bequests  to  others,  the  fifth 
making  him  residuary  legatee.  The  instrument  was  then  read  over  to 
deceased,  and  she  declined  to  sign  it,  because  she  desired  in  it  a  pro- 
vision that,  if  her  brother  should  come  to  want,  she  wanted  the  doctor 
(the  residuary  legatee)  to  take  care  of  him.  To  prepare  and  insert 
such  a  clause  a  lawyer  was  sent  for,  and  Mrs.  Wiser  informed  him 
what  Mrs.  Frisbie  desired,  and  he  added,  not  in  the  precise  words  of 
the  deceased,  but  in  his  own,  expressing  what  he  understood  was  de- 
sired, a  sixth  clause  or  paragraph.  This  clause  did  not  change  in  any 
way  the  legal  effect  of  the  instrument  as  it  was  when  deceased  declined 
to  sign  it.  It  made  no  charge  on  the  estate,  and  imposed  no  duty  or 
liability  on  any  one.  It  was  merely  a  request  to  her  husband  to  see 
that  her  brother  was  taken  care  of  so  as  not  to  become  a  public  charge, 
in  case  he  should  come  to  want.  The  clause  was  not  read  by,  nor  to 
her,  nor  was  it  explained  to  her.  She  was  assured  that  what  she  de- 
sired about  her  brother  was  in  the  instrument,  and  then  what  is  claimed 
as  the  signing  took  place.  If  it  were  clear  that  the  words  in  which 
the  sixth  clause  is  expressed  were  her  words, — that  they  were  chosen 
by  her,  or  adopted  by  her, — the  instrument  would  be  none  the  less  her 
will,  although  the  words  did  not  effect  the  purpose  she  may  have  in- 
tended. But  it  is  clear  from  the  testimony  of  Mrs.  Wiser,  who  re- 
ceived Mrs.  Frisbie's  instructions,  and  communicated  them  to  the 
lawyer,  that  the  language  of  the  deceased  was  not  inserted  in  the 
clause.  The  witness  and  the  lawyer  may  have  thought  it  substantially 
identical, — that  it  expressed  the  same  idea.  But  the  words  of  the 
clause  are  not  the  words  of  the  deceased,  nor,  as  the  words  of  the 
latter  are  testified  to  by  Mrs.  Wiser,  do  they  express  the  same  idea. 


Ch.  3)  TESTAMENTARY  CAPACITY  AND   INTENT.  53 

The  words  to  her  indicate  a  desire  on  the  part  of  the  deceased  to  make 
a  positive  provision  for  her  brother  in  the  contingency  mentioned,  while 
the  words  of  the  clause  make  no  such  provision,  but  leave  the  matter 
of  taking  care  of  the  brother  to  the  option  of  the  husband.  *  *  * 
Order  [granting  a  new  trial]  affirmed.^* 


IDDINGS  v.  IDDINGS. 
(Supreme  Court  of  Pennsylvania,  1821.    7  Serg.  &  R.  111.) 

This  was  a  writ  of  error  to  the  court  of  common  pleas  of  Union 
county,  in  which  a  feigned  issue  was  tried,  to  determine  the  validity 
of  a  writing  purporting  to  be  the  last  will  and  testament  of  Henry  Id- 
dings,  deceased. 

The  plaintiff  having  given  evidence  in  support  of  the  will,  by  the 
oaths  of  the  two  subscribing  witnesses,  one  of  whom  was  Jonas  Candor, 
the  scrivener  who  drew  it,  the  defendants  offered  to  prove,  on  the  cross- 
examination  of  the  said  Candor,  that  through  ignorance  he  had  drawn 
the  will  in  such  a  manner  as  to  contradict  the  intention  of  the  testator. 
The  nature  of  the  mistake  was  as  follows :  The  testator's  estate  was 
principally  personal ;  he  had  a  number  of  children,  to  some  of  whom  he 
had  made  advances  in  money,  and  it  was  his  design  to  make  an  equal 
division  of  his  property  among  them;   in  order  to  effect  this,  a  legacy  * 

was  given  to  each,  which  would  have  put  them  all  on  nearly  an  equal       ,  Wf/fij*-^^ 
footing,  supposing  that  the  sums  advanced  to  each  were  added  to  their 'J^<^ 
legacy ;  but  the  scrivener  inserted  in  the  will  a  direction  to  the  execu- 
tors not  to  cancel  any  of  the  accounts  between  the  testator  and  his 
children;    the  consequence  of  which  would  be  that  the  children  must   ,     /v-**'' 
account  for  the  sums  advanced  to  them,  and  then  their  provision  would .... ' " 
be  very  unequal.     The  mistake  arose  from  the  scrivener's  ignorance 
of  the  meaning  of  the  word  cancel.    It  appeared  that  the  testator  was 
ninety-two  years  old,  and  had  ten  children.     The  defendants  further 
offered  to  prove  that  one  of  the  testator's  children  was  not  named  in    • 
the  will,  and  that  the  will  was  extorted  from  the  testator  by  the  im- 
portunity and  hard  usage  of  Thomas  Iddings,  one  of  his  children. 
The  court  rejected  this  evidence,  and  the  defendants  excepted  to  their 
opinion. 

Jonas  Candor,  the  above-mentioned  witness,  having  stated,  on  his 
examination,  that  the  testator  furnished  him  with  the  matter  of  the 
will,  the  defendants  proposed  to  ask  the  witness  what  were  the  in- 
structions given  to  him  by  the  testator,  and  requested  him  to  state  them 
at  large.  The  plaintiff  objected  to  this  testimony,  and  the  court  over- 
ruled it,  and  sealed  a  second  bill  of  exceptions. 

The  verdict  and  judgment  below  were  for  the  defendant  in  error, 
in  favor  of  the  will. 

**  See  Christman  v.  Roesch,  132  App.  Div.  22,  116  N.  T.  Supp.  348  (1909). 


64  LAST   WILLS   AND  TESTAMENTS.  (Part  1 

TiLGHMAN,  C.  J.'"  This  may  be  a  very  unfortunate  mistake  for 
some  of  the  children  of  the  testator,  but  I  am  clearly  of  opinion  that 
the  evidence  was  not  admissible.  Our  law  requires  that  wills  should 
be  in  writing,  and  proved  by  two  witnesses.  But  if  the  writing  is  to 
be  contradicted  by  parol  evidence,  the  object  of  the  law  will  be  defeated 
and  all  certainty  destroyed.  It  is  very  common  for  scriveners  to  make 
mistakes,  particularly  where  they  make  use  of  technical  words,  which 
they  are  fond  of  doing.  But,  if  these  mistakes  were  to  be  corrected 
by  the  scrivener's  recollection  of  his  conversation  with  the  testator, 
it  would  open  such  a  door  for  perjury  and  confusion,  as  would  render 
wills  of  very  little  use.  The  rule  of  law,  therefore,  is  that  the  writing 
is  not  to  be  altered,  or  explained  by  evidence  aliunde. 
""'^         &«t--tfei5TTireni^'liot"so~unEen&iT^^  no  exception.     It 

may  happen,  that  expressions,  apparently  certain,  may  be  rendered 
uncertain,  by  something  peculiar  in  the  person,  or  the  subject  to  which 
they  are  applied.  A  man  has  two  sons  of  the  name  of  John,  and  de- 
vises land  to  his  son  John.  The  uncertainty  is  made  to  appear  by  parol 
evidence  that  there  are  two  sons  called  John.  It  is  permitted,  there- 
fore, to  remove  this  uncertainty  by  other  parol  evidence,  showing 
which  son  was  intended.  Without  this  evidence,  the  devise  would  be 
void,  and,  in  truth,  its  object  is  to  explain  a  doubt  arising,  not  on  the 
will,  but  on  the  matter  out  of  the  will.  But,  if  a  doubt  should  arise 
on  the  face  of  the  will  (an  ambiguity  patent  as  it  is  called),  it  is  not 
to  be  explained  by  parol  evidence.  So,  parol  evidence  has  been  admit- 
ted to  rebut  a  resulting  trust;  neither  is  this  in  contradiction  of  the 
written  will ;  the  trust  is  not  declared  by  the  will,  but  raised  by  opera- 
tion of  law;  the  legal  presumption  may,  therefore,  be  encountered  by 
parol  evidence  of  the  testator's  intention;  but  the  written  will  is  pre- 
served, without  addition  or  diminution.  In  the  case  of  fraud,  too,  al- 
ways the  subject  of  the  law's  abhorrence,  evidence  is  admitted,  not  for 
the  purpose  of  explaining  or  altering  the  writing,  but  of  showing  it  to 
be  void.  If,  instead  of  the  will  which  a  man  has  read  and  intends  to 
execute,  another  is  substituted,  which  he  executes,  it  is  evident  that  this 
is  not  his  will,  and  proof  of  this  fraud  is  permitted.  So,  I  appreliend, 
the  truth  might  be  shown,  if,  by  mistake,  the  wrong  paper  was  ex- 
ecuted and  the  testator  died  before  there  was  time  to  correct  the  er- 
ror. These  are,  in  general,  the  cases  in  which  parol  evidence  is  al- 
lowed, although  I  will  not  say  that  there  may  not  be  others. 

Now,  the  case  before  us  is  very  different  from  any  I  have  mentioned, 
for  there  is  no  latent  ambiguity,  no  fraud,  no  resulting  trust.  The 
will  was  read  to  the  testator,  and  executed  by  him,  without  any  kind  of 
mistake  or  imposition  as  to  the  paper  itself.  The  mistake,  if  there  was 
one,  was  in  the  meaning  of  a  very  common  word  (cancel).  I  have 
mentioned  the  rule  of  law,  and  will  refer  to  good  authorities  to  prove 
it,  although  I  shall  not  undertake  the  useless  and  endless  labor  of  ex- 

•  B  Part  only  of  the  opinion  Is  given. 


Ch.  3)  TESTAMENTARY   CAPACITY   AND   INTENT.  55 

amining  all  the  cases  in  the  books  on  the  subject  of  parol  evidence. 
The  case  of  Brown  v.  Selwyn  is  strong  to  this  point,  and  I  select  it, 
because  it  was  affirmed  by  the  House  of  Lords  in  England,  and  has 
been  recognized  by  our  courts.  In  that  case  (reported  in  Cas.  temp. 
Talb.  210,  and  4  Bro.  P.  C.  176,  186),  the  testator  had  devised  the  resi- 
due of  his  estate  to  his  two  executors  equally,  and  it  was  offered  to  be 
proved,  that  he  had  given  instructions  to  the  person  who  drew  his  will, 
to  release  a  debt  due  on  bond  from  one  of  his  executors,  but  the  evi- 
dence was  rejected.  In  the  case  of  Mann  and  Others  v.  Mann  and 
Others,  1  Johns.  Ch.  (N.  Y.)  231,  where  the  law  on  this  subject  of 
parol  evidence  is  laid  down  with  great  learning  and  accuracy  by  Chan- 
cellor Kent,  Brown  v.  Selwyn  is  cited  and  relied  on,  as  it  is  also  in  Tor- 
bert  v.  Twining  and  Others,  decided  by  this  court  in  the  year  1795  (1 
Yeates,  432).  The  case  of  McDermott  v.  United  States  Insurance 
Company,  3  Serg.  &  R.  604,  decided  by  us  in  1818,  adheres  to  the  same 
principle  of  rejecting  parol  evidence,  with  the  exceptions  which  I  have 
mentioned.  In  short,  it  may  be  affirmed,  without  hesitation,  that  the 
current  of  authority  runs  strong  in  the  same  channel,  although  it  can- 
not be  asserted  that  all  the  cases  are  in  unison.  For  my  own  part,  be- 
ing convinced  by  experience  of  the  danger  of  parol  evidence,  I  am 
more  inclined  to  shut  the  door,  than  throw  it  wider  open.  I  concur, 
therefore,  with  the  opinion  of  the  court  below  in  the  present  instance. 
But  there  is  another  bill  of  exceptions  in  this  cause.  *  *  * 
My  opinion  is  that  in  the  second  bill  of  exceptions  there  is  error, 
and  therefore  the  judgment  should  be  reversed  and  a  new  trial  or- 
dered.   Judgment  reversed,  and  a  venire  facias  de  novo  awarded.^® 

3  8  See  Comstock  v.  Hadlyme  Ecclesiastical  Society,  8  Conn.  254,  20  Am.  Dec. 
100  (18.30). 

"In  a  court  of  probate,  it  may  doubtless  be  shown  by  parol  evidence  that  the 
alleged  testator,  at  the  time  of  signing  the  instrument,  did  not  understand  that 
it  was  a  will,  or  intend  that  it  should  operate  as  such.  Swett  v.  Boardmau,  1 
Mass.  258  [2  Am.  Dec.  16  (1804)] ;  Osborn  v.  Cook,  11  Cush.  532,  535  [59  Am. 
Dec.  155  (1853)].  But  if,  being  of  sufficient  mental  capacity,  and  free  from  in- 
sane delusion  or  undue  influence,  he  executed  the  instrument  with  a  knowledge 
of  its  nature  and  contents,  and  intending  that  it  should  be  his  last  will,  its  ad- 
mission to  probate  cannot  be  opposed  by  evidence  that  he  did  not  understand  the 
legal  effect  of  all  its  provisions,  or  truly  appreciate  the  proportions  in  which 
his  property  would  be  thereby  distributed.  To  allow  this  to  be  done  would 
be  to  defeat,  by  evidence  of  the  most  unsatisfactory  and  untrustworthy  charac- 
ter, an  instrument  voluntarily  executed  by  a  competent  testator  with  all  the 
forms  and  solemnities  which  the  statute  makes  essential  to  the  validity  of  a 
testamentary  disposition."  Gray,  J.,  in  Barker  v.  Comins,  110  Mass.  477,  488, 
489  (1872). 

In  a  late  English  case,  where  the  court  was  asked  to  strike  out  of  a  will  a 
general  revocation  clause,  and  to  probate  with  the  will  a  prior  will  and  codicil, 
the  court  said:  "The  last  will  contains  words  which  in  law  revoke  all  previous 
wills.  These  words  were  inserted,  as  I  have  no  doubt,  because  the  testatrix; 
misunderstood  their  meaning,  and  I  have  no  doubt  how  she  came  to  misunder- 
stand their  meaning.  It  is  clear  in  the  evidence  that  the  person  who  drew  the 
will  was  ignorant — there  is  no  fraud — as  to  the  effect  of  putting  that  clause 
in  and  doubly  ignorant ;  for  he  told  her  it  would  be  inoperative,  and  he  told 
her,  farther,  if  it  was  struck  out,  the  rest  of  the  will  would  be  vitiated.  Mis- 
informed by  this  statement,  she  allowed  the  clause  to  remain.    The  question 


66  LAST  WILLS   AND  TESTAMENTS.  (Part   1 

MITCHELL  V.  CARD. 

(Court  of  Probate,  1S62.     3  Sw.  &  Tr.  75.) 

Sir  C.  Cresswell  gave  the  following  judgment :  ^"^  In  this  case  the 
defendants  propounded  a  will  alleged  to  have  been  made  by  Mary- 
Gregory,  widow.  The  plaintiffs  pleaded — first,  that  the  will  was  not 
duly  executed;  secondly,  that  the  deceased  was  not  of  sound  mind, 
memory,  and  understanding;  thirdly,  that  the  paper  writing  pro- 
pounded was  not  the  will  of  the  deceased ;  fourthly,  that  the  will  was 
obtained  by  the  undue  influence  of  the  defendant  Gard. 

Issues  were  joined  on  these  pleas,  and  the  cause  came  on  for  trial  at 
the  last  assizes  for  Exeter,  before  Byles,  J.,  when  the  jury  found,  first, 
that  the  will  was  duly  executed;  secondly,  that  the  deceased  was  of 
sound  mind,  memory,  and  understanding;  fourthly,  that  the  will  was 
not  obtained  by  undue  influence. 

With  regard  to  the  third  issue,  the  learned  judge  put  certain  ques- 
tions to  the  jury  suggested  by  the  evidence,  which,  as  far  as  that  is- 
sue was  affected,  was  as  follows :  The  testatrix,  on  Tuesday,  the  16th 
of  September,  in  the  morning,  gave  to  the  defendant  Gard  instructions 
for  her  will.  She  named  several  persons  who  were  to  be  legatees,  and 
the  sums  to  be  given  to  them  respectively,  and  she  made  Gard  residuary 
legatee.  Gard  directed  his  son,  who  was  in  practice  as  an  attorney,  to 
prepare  a  will  according  to  those  instructions,  and  to  do  it  quickly. 
The  son,  in  his  haste,  omitted  the  name  of  Triplett  as  one  of  the  leg- 
atees. In  the  afternoon,  Gard,  the  residuary  legatee,  took  the  will 
to  the  house  of  the  deceased,  and  was  soon  afterwards  followed  by 
two  medical  men.  One  or  more  of  the  legatees  named  in  the  will  were 
there,  and  some  conversation  took  place  about  two  or  three  other  per- 
sons, and  deceased  said  that  she  wished  them  to  have  a  legacy  of  £5 
each.  Gard  made  a  memorandum  of  this,  and  said  it  should  be  at- 
tended to;  but  the  will  was  not  altered.  Soon  after  this  all  persons, 
except  the  two  Gards  (father  and  son)  and  the  medical  men,  left  the 

Is:  Under  these  circumstances,  can  I  strike  it  out  consistently  with  the  author- 
ities? I  am  afraid  I  cannot.  *  •  ♦  Then  Mr.  Bray  refers  me  to  the  case 
of  Alorrell  v.  Morrell  [7  P.  D.  68],  and  it  seems  to  me  that  the  language  used 
in  that  case  expresses  the  law  which  is  applicable  to  this  case,  and  expresses 
what  is  some  reason  for  it,  because  the  view  of  Lord  Hanuen  in  that  case  is 
this:  That  if  a  testator  employs  another  to  convey  his  meaning  in  teclmical 
language,  and  that  other  person  makes  a  mistake  in  doing  it,  the  mistake  is 
the  same  as  if  the  testator  had  employed  that  technical  language  himself.  Now, 
that  view  appears  to  me  exactly  to  meet  the  present  case.  This  lady  thought 
it  right  to  employ  this  gentleman  to  make  her  will  for  her;  she  thought  it 
right  to  trust  hhn.  No  doubt  he  was  mistaken;  but,  according  to  Uie  view  of 
Lord  Uannen,  his  mistake  was  her  mistake.  •  •  •  Under  these  circumstan- 
ces I  feel  bound  to  say  that  I  am  unable  to  strike  these  words  out  of  the  will, 
and  probate  will  go  of  the  will  of  October  17,  1889,  with  these  words  of  revoca- 
tion Included.  The  will  of  1875,  with  the  codicil  of  1885.  will  not  be  admitted 
to  probate."  Sir  Francis  Henry  Jeuue,  President,  in  Collins  v.  Elstone,  [1893] 
P.  1,  3-5. 

87  The  statement  of  facts  is  omitted. 


Ch.  3)  TESTAMENTARY  CAPACITY  AND   INTENT.  57 

room.  Gard  then  read  over  the  will  slowly  and  carefully  to  the  de- 
ceased ;  she  attended  to  it,  and  expressed  herself  satisfied.  Neither  she 
nor  Gard  noticed  the  omission  of  Triplett's  name.  The  will  was  then 
duly  executed  by  her,  and  attested  by  the  medical  men.  The  learned 
judge  told  the  jury  that  an  accidental  and  innocent  deviation  from  in- 
structions (as  in  the  case  of  the  legacy  to  Triplett)  would  not  vitiate  a 
will  afterwards  executed  and  rightly  understood,  or  even  executed  by 
a  competent  testator ;  but,  with  reference  to  the  omission  of  the  other 
legacies,  he  asked  the  jury  whether  the  instructions  for  them-  were 
present  to  Gard's  mind  at  the  time  of  the  execution  of  the  will,  but 
absent  from  the  mind  of  the  testatrix,  and  he  (Gard)  knew  them  to  be 
so;  or  whether  the  testatrix  executed  the  will  in  the  erroneous  belief 
that  those  legacies  had  been  given  by  the  will,  and  Gard  knew  that  she 
did  so.  The  jury  found  that  the  testatrix  had  given  instructions  to 
Gard  for  legacies  to  Gillard,  Perriam,  and  Egg ;  that  at  the  time  of  the 
execution  of  the  will  those  instructions  were  present  to  his  mind ;  that 
they  were  absent  from  hers,  and  that  he  knew  them  to  be  so.  The 
learned  judge  thereupon  directed  the  verdict  to  be  entered  for  the 
plaintiffs,  on  the  third  issue,  giving  to  the  defendants  leave  to  move  to 
enter  it  in  their  favor.  A  rule  nisi  for  that  purpose  having  been  grant- 
ed, cause  was  shown  against  it  on  the  15th  of  May,  when  the  cases  of 
Barry  v.  Butlin,  2  Moo.  P.  C.  480,  and  Mitchell  v.  Thomas,  6  Moo. 
P.  C.  137,  were  cited  to  show  that  when  a  person  prepares  a  will  by 
which  he  is  largely  benefited,  and  the  capacity  of  the  testator  is  at  all 
doubtful,  it  is  necessary  to  prove  that  instructions  were  given  by  the 
testator,  or  that  the  will  was  read  over  to  him,  or  that  by  some  other 
means  he  was  fully  acquainted  with  its  contents. 

Those  cases  have  no  bearing  on  the  question  now  to  hp.  determined, 
for  the  testatrix  gave  instructions  for  all  that  was  in  the  will ;  it  was 
read  over  to  her,  and  the  jury  found  that  she  was  of  sound  mind,  mem- 
ory, and  understanding,  which  is  not  now  disputed.  The  '"eal  question 
is,  whether  that  which  she  heard  read,  and  approved,  and  executed,  is 
or  is  not  her  will,  because  she  forgot  at  the  tirne  that  she  had  desired 
other  legacies  to  be  given,  which  were  not  inserted.  Before  the  Stat- 
ute 1  Vict.  c.  26,  many  wills  were  brought  under  the  consideration  of 
the  Prerogative  Court,  when  it  appeared  that  they  did  not  contain  all 
that  the  testator  intended.  The  cases  on  the  subject  may  be  divided 
into  two  classes :  one,  where  there  was  on  the  face  of  the  will,  as 
executed,  some  ambiguity  or  incongruity  which  indicated  that  some- 
thing must  have  been  omitted  by  mistake,  and  in  them  evidence  was 
received  of  the  testator's  intention,  and  the  omission  supplied.  The 
other  class  was  where  there  was  nothing  on  the  face  of  the  will  to 
mdicate  that  a  mistake  had  been  made,  and  the  principle  of  kw  ap- 
plicable to  them  was  very  clearly  stated  by  Sir  John  NichoU  in  Bayl- 
don  V.  Bayldon,  3  Add.  232.  He  says:  "Where  a  will  has  nothing 
doubtful  or  incongruous  on  the  face  of  it,  suggesting  itself  the  proba- 
bility of  some  casual  error  to  account  for  this  in  the  body  of  the  wilL 


58  LAST   WILLS   AND   TESTAMENTS.  (Part   1 

extrinsic  evidence  of  the  testator  having  meant  other  than  the  will 
expresses  is  inadmissible,  as  the  court  after  and  notwithstanding  such 
evidence  would  still  be  bound  to  pronounce  for  the  will."  And  again, 
in  Shadbolt  v.  Waugh,  3  Hagg.  573,  the  same  learned  judge,  with  ref- 
erence to  an  alleged  omission,  said,  "It  may  be  possible  that  the  non- 
insertion  escaped  his  observation  when  the  will  was  read  over,  but  that 
is  not  sufficient." 

The  omission  of  the  legacies  therefore  did  not  prevent  the  will  pro- 
pounded from  being  the  will  of  the  deceased.  There  is  nothing  to 
show  that  at  the  time  when  it  was  executed  she  believed  it  to  be  other 
than  it  really  was ;  as  far  as  this  question  is  concerned,  I  think  it  makes 
no  difference  whether  the  legacies,  were  omitted  by  accident  or  inten- 
tionally, nor  can  it  make  any  difference  that  Gard  remembered  the 
legacies,  and  knew  that  she  had  forgotten  them.  But  also  the  will  was 
executed  by  her  intending  that  it  should  be  her  will ;  if  her  execution 
of  it  had  been  obtained  by  fraud,  the  case  would  be  different.  The 
knowledge  of  Gard  may  raise  a  suspicion  against  him,  but  fraud  was 
not  pleaded,  nor  do  I  learn  from  the  learned  judge's  notes  that  it  was 
imputed,  nor  was  any  question  put  to  the  jury  on  the  subject. 

The  point  reserved  must  therefore  be  determined  apart  from  any 
presumption  of  fraud,  and  on  the  authority  of  the  cases  cited,  as  well 
as  the  reason  of  the  thing,  I  am  of  opinion  that  the  writing  propounded 
was  the  will  of  the  testatrix,  and  that  the  rule  for  entering  a  verdict' 
for  the  defendants  on  the  third  issue  must  be  made  absolute.^* 


HARTER  V.  HARTER. 

(Court  of  Probate,  1873.     L.  R.  3  P.  &  D.  11.) 

Sir  J.  Hannen.^®  In  this  case  the  plaintiffs,  two  of  the  executors 
of  the  will  of  the  Rev,  George  Gardner  Harter,  deceased,  dated  the 
6th  of  June,  18C2,  propound  the  said  will,  together  with  a  codicil  there- 
to of  the  31st  of  August,  1863,  and  in  their  declaration  allege  that  the 
word  "real,"  which  immediately  precedes  the  w(5rd  "estate"  in  the 
residuary  clause  of  the  will  was  inserted  in  the  said  residuary  clause 
by  error,  contrary  to  the  instructions  of  the  testator,  and  was  retained 

88  The  English  rule  is  that  words  inserted  in  a  will  by  mistake  may  be 
stricken  out.  but  that  words  omitted  from  a  will  may  not  be  inserted.  Goods 
of  Louis  Schott,  [1001]  P.  190.     See  Harter  v.  Ilarter.  the  next  priucipal  case. 

In  Newbursh  v.  Newburgh,  5  ALad.  304  (1820),  a  devise  of  lands  in  the  coun- 
ties of  Gloucester  and  Sussex  was  by  mistake  copied  as  a  devise  of  lands  in  the 
county  of  Sus.sex,  and  it  was  held  that  the  mistake  could  not  be  corrected.  In 
that  case,  "ui>on  an  appeal  to  the  House  of  Lords,  the  judges  were  unanimous 
that  the  parol  evidence  could  not  be  received,  but  the  case  was  ultimately  de- 
cided by  the  House  upon  the  true  construction  of  what  still  appeared  on  The 
face  of  the  will."     Sugden's  Law  of  Property,  200. 

Compare  Stanley  v.  Stanley,  2  J.  &  H.  40i  (18G2). 

8  9  The  statement  of  facts  is  omitted. 


Ch.  3)  TESTAMENTARY  CAPACITY  AND   INTENT.  59 

therein  at  the  time  of  the  execution  of  the  will,  without  his  knowledge 
or  approval,  and  that  by  reason  thereof  the  said  word  "real"  is  not 
entitled  to  be  included  in  the  probate.  One  of  the  defendants,  Eliza- 
beth Jessy  Harter,  the  widow  and  remaining  executrix  of  the  will,  has 
pleaded  denying  that  the  word  "real"  was  inserted  in  the  residuary 
clause  by  error,  contrary  to  the  instructions  of  the  deceased,  and  that 
the  said  word  "real"  was  retained  therein  without  the  testator's  knowl- 
edge and  approval,  and  a  further  plea  that  the  will  with  the  word 
"real"  in  the  residuary  clause  was  read  over  by  and  to  the  said  tes- 
tator, who  was  competent  to,  and  did,  understand  the  same ;  that  the 
testator  at  the  time  of  the  execution  of  the  said  will  knew  and  approved 
of  the  contents  thereof  as  the  same  now  appear;  and,  lastly,  that  the 
testator,  after  executing  this  said  will,  duly  executed  the  codicil  thereto, 
dated  the  31st  of  August,  1863,  and  thereby  confirmed,  and,  in  law, 
re-executed  his  said  will  as  the  same  now  appears.  These  portions  of 
the  pleadings  are  sufficient  to  show  the  questions  which  arise  for  de- 
cision in  the  cause.  By  the  settlement  executed  on  the  marriage  of 
the  deceased,  he  had,  with  his  wife,  a  joint  power  of  appointment  of 
moneys,  amounting  on  the  whole  to  £65,000,  for  the  benefit  of  one  or 
more  of  his  children.  By  a  subsequent  settlement  certain  freehold  and 
copyhold  hereditaments  in  the  county  of  York  stood  at  the  time  of  the 
execution  of  the  will  in  question  limited  to  the  use  of  the  deceased  and 
his  assigns  for  life,  with  remainder  to  the  use  of  his  first  and  other 
sons  successively,  according  to  seniority,  in  tail  male,  with  divers  re- 
mainders over.  The  deceased  was  also  possessed  of  real  estate  of  con- 
siderable value,  and  of  personalty  of  the  value  of  about  £200,000.  In 
this  state  of  things,  the  deceased,  on  the  1st  of  May,  1862,  after  full 
explanation  from  his  solicitor,  Mr.  Slater,  of  the  position  of  affairs  in 
reference  to  the  said  settlements,  gave  him  oral  instructions  for  the 
preparation  of  his  will.  Mr.  Slater,  in  the  presence  of  the  deceased, 
wrote  a  memorandum  of  these  oral  instructions.  The  deceased  also 
instructed  him  to  prepare  a  joint  appointment  under  the  power  in 
that  behalf  in  the  marriage  settlement,  and  this  was,  as  stated  by  Mr. 
Slater,  part  of  the  scheme  tlie  testator  wished  to  be  carried  out  in  con- 
nection with  his  will. 

The  memorandum  of  the  instructions  for  the  will  is  before  the  court, 
and  is  as  follows:  "Give  to  wife,  Elizabeth  Jessy  Hall,  provisions, 
wines,  liquors,  carriages,  horses,  harness,  live  and  dead  stock  in  and 
about  my  dwelling-house  and  farm  at  Cranfield,  except  plate  and  fur- 
niture, with  £1,000  legacy  to  wife  absolutely.  Set  apart  a  sum  suffi- 
cient to  raise  an  annuity  of  £2,000  per  annum  to  Mrs.  Harter  for  life, 
with  powers  of  investment.  Give  to  Mrs.  Harter  the  privilege  of 
occupying,  rent  free,  the  house,  outbuildings,  garden,  and  pleasure- 
grounds  at  Cranfield  Court,  until  eldest  son  for  the  time  being  shall 
attain  twenty-five  years  of  age,  provided  she  so  long  remains  my 
widow;  and  during  such  occupation  of  the  house  Mrs.  Harter  to  have 
the  use  of  the  plate  and  furniture  without  liability  to  loss  or  breakage. 


60  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

Limit  (subject  to  interest  in  Cranfield  Court  given  to  Mrs.  Harter)  the 
Cranfield  and  other  estates  in  Bedfordshire  or  Buckinghamshire,  in- 
cluding the  advowson  of  Cranfield,  and  the  plate  to  like  limitations  as 
the  Yorkshire  estate,  subject  to  previous  trusts.  Give  furniture  at 
Cranfield  Court  to  eldest  son  for  the  time  being  on  attaining  twenty- 
five.  Also  give  him  £20,000  on  attaining  twenty-one.  Give  legacy 
of  ilO,000  to  each  of  my  daughters,  Sophia  Elizabeth,  Jessy  H.,  and 
Eleanor  Maude  H.,  on  twenty-one  or  marriage.  And  the  residue 
equally  among  all  the  sons,  including  the  eldest  for  the  tim£  being,  on 
attaining  twenty-one.  Maintenance,  education,  and  atSvancement 
clauses  during  minority,  as  usual.  Trustees  and  executors,  my  wife 
and  my  brother,  James  Collier  Harter."  Mr.  Slater  subsequently 
handed  this  memorandum  to  his  managing  clerk,  Mr.  Howarth,  who 
drew  up  a  draft  will.  In  this  draft  the  residuary  clause  is  drawn  in 
the  following  words:  "And  subject  to  the  interests  hereinbefore  con- 
tained, upon  further  trust  to  stand  possessed  of  all  the  residue  and 
remainder  of  my  real  estate,  in  trust  to  divide  the  same  equally  between 
and  amongst  such  of  my  sons  now  born  or  hereafter  to  be  born  (in- 
clusive of  my  eldest  son  for  the  time  being),  as  and  when  they  shall 
severally  attain  their  respective  ages  of  twenty-one  years,  for  their  own 
use  and  benefit  absolutely."  A  joint  appointment  providing  for  the 
equal  division  of  the  funds  settled  by  the  marriage  settlement  was  also 
drawn  up.  On  the  2d  of  May  Mr.  Slater  handed  to  the  deceased  a 
fair  copy  of  the  draft  for  his  perusal;  and  on  the  same  day  the  draft 
of  the  joint  appointment  was  also  furnished  to  the  deceased.  On  the 
6th  of  May  the  deceased  returned  to  Mr.  Slater  the  draft  will,  as  to 
which,  after  stating  that  he  had  carefully  perused  it,  he  suggested  cer- 
tain alterations.  These  were  afterwards  embodied  in  the  draft  in  red 
ink,  and  the  draft,  so  altered,  was  again  returned  to  the  deceased.  Be- 
tween this  time,  the  9th  of  May,  and  the  execution  of  the  will  on  the 
6th  of  June,  several  letters  passed  between  the  deceased  and  Mr.  Slater 
on  the  subject  of  the  will,  which  clearly,  show  that  the  deceased  read 
and  fully  considered  the  will,  and  suggested  an  alteration  in  the  residu- 
ary clause,  by  which  the  eldest  son  was  to  take  a  share  equal  to  two 
of  his  brothers'  shares;  but  no  reference  is  made  in  the  correspondence 
to  the  terms  in  which  the  residuary  clause  was  worded,  and  it  re- 
mained, with  the  exception  of  the  above-mentioned  alteration,  as  drawn 
in  the  first  draft,  and  was  so  copied  into  the  will,  which  was  ultimately 
executed. 

Mr.  Howarth,  the  managing  clerk  to  Mr.  Slater,  was  called  as  a 
witness,  and  stated  that  he  understood  the  word  "residue"  in  the  in- 
struction, to  mean  "real  and  personal,"  but  that  by  inadvertence  he 
drew  it  as  it  now  stands,  and  never  noticed  the  error.  Mr.  Slater 
also  stated  that  the  terms  of  the  residuary  clause  entirely  escaped  his 
attention.  Upon  the  evidence  afforded  by  the  documents  in  the  cause 
as  well  as  by  the  oral  testimony  of  the  witnesses,  I  entertain  no  doubt 
that  the  residuary  clause,  as  it  stands  in  the  will,  does  not  express  the 


Ch.  3)  TBSTAMBNTAB¥  CAPACITY  AlfD  INTBNT.  61 

real  meaning  of  the  testator.  It  was  not  his  intention  that  there  should 
be  an  intestacy  as  to  his  residuary  personalty,  but  that  he  intended  that 
such  residue  should  be  divided  amongst  his  sons,  the  eldest  taking  two 
shares.  It  is  necessary  that  I  should  state  what  appears  to  me  to  have 
been  the  exact  nature  of  the  error  by  which  a  failure  to  express  the 
true  intention  of  the  testator  has  arisen.  I  think  that  the  error  consists 
in  the  omission  of  the  words  "and  personal"  after  the  word  "real"  in 
the  residuary  clause.  The  memorandum  of  instructions  drawn  up  by 
Mr.  Slater,  deals  with  realty  as  well  as  personalty,  and  then  proceeds 
to  dispose  of  the  residue.  This,  without  qualification,  would  mean  the 
residue  of  the  testator's  property  generally,  real  and  personal ;  and  so 
it  was  understood  by  Mr.  Howarth,  who  drew  the  will.  It  makes  no 
difference  in  my  judgment,  that  the  testator  had  not  at  the  time  any 
other  realty  than  that  which  he  had  specifically  disposed  of.  That  fact 
may  possibly  have  made  him  or  Mr.  Slater  careless  in  the  use  of  a 
general  term  wide  enough  to  include  realty,  if  it  had  existed,  but  it 
does  not  negative  an  intention  on  their  part  to  use  the  word  in  its  or- 
dinary and  more  extended  sense.  There  was  no  intention  on  the  part 
of  the  testator  to  leave  an  intestacy  as  to  any  other  real  estate  which 
he  might  possess  or  acquire,  but  in  the  belief  that  he  had  not  and  prob- 
ably would  not  have  any,  he  was  content  to  use  language  wide  enough 
to  include  it.  Nor  does  the  fact  that  the  language  of  the  residuary 
clause  in  disposing  of  the  residue  is  rather  applicable  to  personalty 
make  any  difference. 

On  this  point  the  observations  of  Lord  Cottenham  in  Saumarez  v. 
Saumarez,  4  M.  &  Cr.,  at  page  340,  may  be  referred  to.  "The  circum- 
stances of  the  testator  using  expressions  and  giving  directions  appli- 
cable only  to  the  personal  estate,  may  prove  that  he  did  not  at  the 
time  consider,  or  was  not  aware,  that  realty  would  be  part  of  his  resi- 
due; but  if  such  knowledge  be  not  necessary,  as  it  certainly  is  not,  to 
give  validity  to  the  devise,  the  absence  of  it,  though  so  manifested, 
cannot  destroy  the  operation  of  the  general  intent  of  passing  all  the 
residue  of  his  property;"  and  again,  at  p.  339,  "In  considering  gifts  of 
residue,  whether  of  real  or  personal  estate,  it  is  not  necessary  to  as- 
certain whether  the  testator  had  any  particular  property  in  contem- 
plation at  the  moment.  Indeed,  such  gifts  may  be  introduced  to  guard 
against  a  testator  having  overlooked  some  property  or  interest  in  the 
gifts  particularly  described."  This  view  of  the  facts  leads  me  to  a 
conclusion  which  is  decisive  of  the  case.  I  think  it  is  not  in  the  power 
of  the  court  to  supply  words  accidentally  omitted  from  a  will.  The 
Wills  Act  (1  Vict.  c.  26,  §  9)  admits  of  no  qualification.  "No  will 
shall  be  valid  unless  it  shall  be  in  writing,  and  executed  in  manner 
hereinafter  mentioned,"  that  is,  by  a  duly  attested  signature.  In  the 
present  case  there  is  no  testamentary  disposition  of  the  residue  of  the 
personalty  of  the  deceased  fulfilling  the  requirements  of  the  act,  and 
the  intention  of  the  deceased,  however  clearly  it  may  appear  in  the  un- 
attested instructions,  cannot  be  given  effect  to.    "With  respect  to  wills 


62  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

made  on  or  after  January,  1838,"  says  Sir  E.  V,  Williams  (1  Wm. 
Ex'rs,  345,  Cth  Ed.),  "it  is  plain  that  by  reason  of  the  provisions  of 
the  Statute  1  Vict.  c.  26,  the  whole  of  every  testamentary  disposition 
must  be  in  writing  and  attested  pursuant  to  the  act.  Whence  it  fol- 
lows that  the  court  has  no  power  to  correct  omissions  or  mistakes  by 
reference  to  the  instructions  in  any  case  to  which  that  statute  extends." 
This  disposes  of  the  numerous  cases,  which  were  cited  in  argument, 
of  dates  anterior  to  1  Vict.  c.  26;  and  with  regard  to  wills  to  which 
that  statute  is  applicable,  it  has  not  been  suggested  that  the  court  can 
admit  to  probate  any  words  not  contained  in  some  duly  attested  testa- 
mentary document,  however  cogent  the  evidence  may  be,  from  oral 
or  written  instructions,  that  they  were  intended  to  be  part  of  the  will. 

But  it  was  contended  on  behalf  of  the  plaintiffs  that  the  true  view  of 
the  nature  of  the  mistake  in  the  draft  and  copy  as  executed  is  not  that 
the  words  "and  personal"  were  omitted,  but  that  the  word  "real"  was 
inserted,  and  that  the  will  ought  to  be  made  to  read  "all  the  residue 
and  remainder  of  my  estate."  I  have  already  stated  my  grounds  for 
holding  that  the  error  was  one  of  omission,  but  there  are  further  spe- 
cial reasons  why  I  cannot  expunge  the  word  "real"  from  the  residuary 
clause.  There  are  undoubtedly  numerous  cases  which  establish  that 
this  court  may  decree  probate  of  a  part  only  of  a  properly  attested  in- 
strument purporting  to  be  a  will.  It  is  not  necessary  to  do  more  than 
refer  to  the  authorities  collected  in  the  case  of  Fawcett  v.  Jones,  3 
Phillim.  434,  which,  though  relating  to  wills  before  the  Statute  1  Vict, 
c.  26,  are  on  this  head  applicable  to  wills  of  a  later  date.  And  in  the 
case  of  Allen  v,  McPherson,  1  H.  L.  C,  at  p.  209,  Lord  Lyndhurst 
said,  "It  is  perfectly  clear  that  the  Ecclesiastical  Court  may  admit 
part  of  an  instrument  to  probate,  and  refuse  it  as  to  the  rest."  Lord 
Campbell  (1  H.  L.  C,  at  page  233)  in  the  same  case  says,  "It  is  quite 
clear  that  the  Ecclesiastical  Court  had  jurisdiction  to  refuse  probate  of 
that  part  of  the  codicil  which  affects  the  appellant,  because,  giving 
credit  to  the  facts  stated,  that  part  of  the  codicil  was  not  the  will  of 
the  testator;  he  was  imposed  upon,  and  probate  of  that  part  of  the 
codicil  ought  to  have  been  refused."  In  that  case  fraud  was  the  ground 
on  which  it  was  sought  to  expunge  a  part  of  a  codicil ;  but  In  the 
Goods  of  Duane,  2  Sw.  &  Tr.  590,  Sir  C.  Cresswell  applied  the  same 
reasoning  to  a  case  of  simple  mistake.  There  the  words  which  were 
rejected  were  part  of  a  printed  form,  and  ought  to  have  been  struck  out 
as  inconsistent  with  the  instructions  given  by  the  testator;  they  were 
not  read  by  or  to  the  testator,  but  the  person  who  prepared  the  will 
omitted  to  strike  them  out.  Sir  C.  Cresswell,  after  referring  to  Allen 
V,  McPherson,  said:  "I  can  see  no  difference  in  principle  between  that 
case  and  the  present  one,  where  a  clause  for  which  the  deceased  gave 
no  instructions,  and  which  was  not  read  over  to  him,  formed  per  in- 
curiam  part  of  the  document  signed  by  the  deceased." 

The  facts  of  that  case  distinguish  it  in  an  essential  manner  from  the 
present.     There  an  entire  clause  of  which  the  testator  was  altogether 


Ch.  3)  TESTAMENTARY   CAPACITY   AND   INTENT.  63 

ignorant  was  introduced  by  accident,  and  it  was  contrary  to  the  inten- 
tion of  the  person  who  drew  the  will  that  the  clause  should  be  in  it. 
In  the  present  case  the  testator  intended  that  a  clause  disposing  of  the 
residue  of  his  personalty  should  be  in  the  will,  but  he  left  it  to  another 
person  to  choose  the  language  by  which  his  intention  should  be  carried 
into  effect,  and  he  read  and  adopted  as  his  own  the  language  so  chosen. 
Inappropriate  language  having  been  used,  the  court  is  asked  to  remedy 
the  mistake,  not  by  rejecting  words  of  which  the  testator  is  proved  to 
have  been  ignorant,  but  by  modifying  the  language  used  by  the  drafts- 
man, and  adopted  by  the  testator,  so  as  to  make  it  express  the  supposed 
intention  of  the  testator.  This  is,  in  fact,  to  make  a  new  will.  The 
theory  of  the  plaintiffs,  is  that  the  testator  had  his  personalty  only  in 
his  mind,  when  he  gave  instructions  for  the  residuary  clause,  because 
he  had  no  realty  undisposed  of.  If  so,  the  proper  mode  of  carrying 
out  the  instructions  would  have  been  to  say,  "the  residue  of  my  per- 
sonal estate ;"  and  in  that  case  the  error  consists  in  having  substituted 
the  word  "real"  for  "personal."  Upon  this  hypothesis  the  court  is 
asked  to  strike  out  the  word  "real,"  not  because  the  clause  would  then 
be  in  the  form  the  testator  intended,  but  because  it  would  in  its  trans- 
formed shape  substantially  carry  out  the  testator's  wish.  It  is  also  to 
be  observed,  that  not  only  the  form,  but  probably  the  effect  would  be 
different;  for  a  bequest  of  the  residue  of  the  testator's  estate  would, 
according  to  the  modern  decisions,  include  the  realty,  unless  the  con- 
text clearly  excluded  it :  Jarm.  on  Wills,  c.  23 ;  The  Mayor  and  Cor- 
poration of  Hamilton  v.  Hodsdon,  6  Moore,  P.  C.  76. 

Such  a  mode  of  dealing  with  wills  would  lead  to  the  most  dangerous 
consequences ;  for  it  would  convert  the  Court  of  Probate  into  a  court 
of  construction  of  a  very  peculiar  kind,  whose  duty  it  would  be  to 
shape  the  will  into  conformity  with  the  supposed  intentions  of  the  tes- 
tator. In  very  many  of  the  cases  which  come  before  the  courts  of  law 
and  equity,  as  to  the  proper  construction  of  wills,  the  intention  of  the 
deceased  is  supposed  to  be  seen,  but  the  question  is  whether  the  lan- 
guage used  expresses  the  intention.  If  the  process  now  sought  to  be 
applied  to  this  will  were  to  be  adopted,  the  Court  of  Probate  will  in 
future  be  asked,  first  to  ascertain  by  extrinsic  evidence  what  the  tes- 
tator's intention  was,  and  then  to  expunge  such  words  or  phrases,  as, 
being  removed,  will  leave  a  residuum,  carrying  out  the  intention  of  the 
,testator  in  the  particular  case,  though  different  in  form,  and  possibly 
in  legal  effect,  from  that  which  the  testator  or  his  advisers  intended. 
If  I  felt  myself  at  liberty  to  adopt  such  a  course,  I  should  think  that 
the  best  amendment  of  the  will  would  be  to  leave  the  word  "residue" 
by  itself  in  the  residuary  clause  as  it  is  in  the  memorandum  of  instruc- 
tions. But  it  is  obvious  that,  though  this  might  give  effect  to  the  testa- 
tor's wishes  in  this  instance,  it  would  be  by  an  accident ;  for  the  word 
"residue,"  taken  with  the  context  of  the  will,  might  have  had  a  differ- 
ent effect  to  that  which  it  has  in  connection  with  the  context  of  the 
instructions;    but,  for  the  reasons  I  have  given,  I  entirely  repudiate 


64  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

this  mode  of  altering-  the  language  of  a  testamentary  instrument,  and 
I  am,  therefore,  of  opinion  that  whether  the  error  which  has  undoubt- 
edly crept  into  the  will  be  one  of  omission  or  insertion,  it  is  equally 
beyond  the  jurisdiction  of  this  court  to  correct  it. 

I  have  thus  far  considered  the  case,  apart  from  the  decision  of  Lord 
Penzance  in  Guardhouse  v.  Blackburn,  Law  Rep.  1  P.  &  D.  109,  but 
I  must  add  that  it  appears  to  me  that  that  is  an  authority  directly  de- 
cisive of  this  case  in  favor  of  the  defendants.  It  was  there  established 
to  the  satisfaction  of  the  court  that  specific  words  had  been  inserted  by 
the  attorney  who  drew  the  codicil  by  mistake,  and  without  instructions. 
Yet  the  learned  judge  held  that  as  the  contents  of  the  codicil  had  been 
brought  to  the  knowledge  of  a  competent  testatrix,  the  execution  of  the 
instrument  must  tie  deemed  conclusive  evidence  that  she  approved  as 
well  as  knew  the  contents.  If  I  did  not  agree  in  the  reasons  given  by 
Lord  Penzance  for  his  decision,  it  would  be  my  duty  to  follow  it  in  a 
similar  case;  but  I  must  add,  that  I  entirely  adopt  my  predecessor's 
very  lucid  exposition  of  the  rules  by  which  this  court  ought  to  be  gov- 
erned with  reference  to  the  rejection  of  the  whole  or  part  of  a  duly 
executed  testamentary  document. 

The  conclusion  I  have  arrived  at  makes  it  unnecessary  that  I  should 
express  a  positive  opinion  on  the  effect  which  the  execution  of  the 
codicil  would  have  had  on  the  will,  if  I  had  thought  that  the  word 
"real"  ought  to  be  expunged  from  the  residuary  clause,  but  I  am 
strongly  inclined  to  think  that  it  would  have  made  no  difference,  and 
that  the  codicil  must  be  held  to  confirm  only  that  which  was  the  true 
will  of  the  testator.  For  these  reasons  I  pronounce  for  the  will  in  its 
present  form.*" 

*o  "After  much  consideration,  the  following  propositions  commend  themselves 
to  the  court  as  rules  which,  since  the  statute  [the  Wills  Act]  ought  to  govern 
,^  its  action  ia  r£.sj5ect^of_a_duly  executed  papers   First,  that  before  a  paper  so 
executed  is  entitled  to  proMte;~the  court  must  be  satisfied  that  the  testator 
knew  and  approved  of  the  contents  at  the  time  he  signed  it     Secondly,  that 
except  in  certain  cases,  where  suspicion  attaches  to  the  document,  the  fact  of 
the  testator's  execution  is  sufiicient  proof  that  he  knew  and  approved  the  con- 
tents.   Thirdly,  that  although  the  testator  knew  and  approved  the  contents,  the 
paper  may  still  be  rejected,  on  proof  establishing,  beyond  all  rwssibillty  of  mis- 
tike,  that  he  did  not  intend  the  pai^er  to  operate  as  a  will.    Fourthly,  that  al- 
SP"         though  the  testator  did  know  and  approve  the  contents,  the  paper  may  be  re- 
V^  fused  probate,  if  it  be  proved  that  any  fraud  has  been  purposely  practiced  on 

^^  the  testator  in  obtaining  his  execution  thereof.    Fifthly,  that  subject  to  this  last 

<^  preceding  proposition,  the  fact  that  the  will  lias  been  duly  read  over  to  a  capa- 

ble testator  on  the  occasion  of  its  execution,  or  that  its  contents  have  been 
j;;]"^;^        brought  to  his  notice  in  any  other  way,  should,  when  coupled  with  his  execu- 
'i^       tion  thereof,  be  held  conclusive  evidence  that  he  approved  as  well  as  knew  the 
^^^     contents  thereof.     Sixthly,  that  the  above  rules  apply  equally  to  a  portion  of 
^    the  will  as  to  the  whole."    Sir  J.  P.  Wilde,  in  GuardJiouse  v.  Blackburn,  L.  R. 
1  P.  &  D.  109,  116  (1866). 


Ol.  3)  ^.X^l-BSTAMENTARY   CAPACITY   AND   INTENT.  65 

MORRELL  V.  MORKELL. 

{High  Court  of  Justice,  Probate  Division,  1882.    7  P.  D.  68.) 

The  President  (Sir  James  Hannen).  *^  The  finding-s  of  the  jury 
have  disposed  of  the  whole  matter.  It  appears  that  the  testator  in- 
tended to  leave  all  his  shares  in  a  particular  company  to  his  nephews, 
and  gave  instructions  to  that  effect  to  his  solicitor,  who  embodied  them 
in  writing  and  sent  them  to  a  conveyancing  counsel  in  London  to  draw 
the  will.  In  those  instructions  the  solicitor  spoke,  as  he  had  been  di- 
rected by  the  testator  to  speak,  of  "all"  the  testator's  shares ;  but,  by 
some  accident  not  accounted  for,  counsel  introduced  into  the  draft  will 
the  word  "forty"  before  "shares."  Though  the  solicitor  saw  this,  it 
never  attracted  his  attention,  and  he  never  realized  the  effect  the  word 
"forty"  would  have  on  the  disposition  of  the  shares  made  by  the  tes- 
tator. The  jury  have  arrived  at  the  conclusion  that  what  the  solicitor 
said  on  this  subject  was  correct — that  he  never  informed  the  testator 
in  any  way  that  the  word  "forty"  had  been  introduced;  and  it  was 
proved,  by  other  evidence  than  that  of  the  solicitor  himself,  that  the 
actual  will  as  executed  was  not  read  over  to  the  testator.  The  jury 
found  that  the  testator  never  authorized  the  introduction  of  the  word 
"forty"  in  the  will,  and  never  heard  that  it  had  been  introduced,  and 
that  he  executed  the  will  in  the  belief  that  it  carried  out  his  instruc- 
tions. In  the  case  of  Harter  v.  Harter,  L.  R.  3  P.  &  D.  11,  23,  I  held 
that  the  language  of  a  will  could  not  be  changed  where  the  testator 
had  seen  the  words  and  adopted  them;  but  in  Fulton  v.  Andrew,  L. 
R.  7  H.  L.  448,  where  a  residuary  bequest  was  introduced  into  a  will 
without  the  knowledge  and  authority  of  the  testator,  the  clause  con- 
taining that  bequest  was  rejected.  If  so,  the  same  principle  may  be 
applied  to  a  single  word,  and  therefore,  on  the  ruling  of  the  House  of 
Lords,  in  Fulton  v.  Andrew,  I  hold  that  the  words  may  be  struck  out 
which  had  been  introduced  without  the  authority  of  the  testator. 

The  Court  directed  that  the  word  "forty"  be  struck  out  of  the  four 
places  in  which  it  occurred  in  the  will,  and,  by  consent  of  the  parties, 
directed  that  the  costs  be  paid  by  the  plaintiffs.** 


In  re  GOODS  OF  BOEHM 

(High  Court  of  Justice,  Probate  Division.     [1891]  P.  247.) 

Motion  for  a  grant  of  probate  of  a  will  with  certain  alterations. 
The  testator,  Sir  J.  E.  Boehm,  R.  A.,  died  December  24,  1890,  leav- 
ing a  will  duly  executed  bearing  date  December  12,  1889. 

*i  The  statement  of  facts  and  the  instructions  to  the  jury  are  omitted. 

*2  In  Goods  of  Thomas  Duane,  2  Sw.  &  Tr.  590  (1862),  Goods  of  Oswald,  L.  a. 
3  P.  &  D.  162  (1874),  and  Goods  of  Sarah  Sophia  Moore,  [1892]  P.  378,  clauses 
of  revocation  not  read  to  or  by  the  testator  were  omitted  from  probate.    Com- 
pare Goods  of  Lady  Isabella  Gordon,  [1892]  P.  228. 
Cost.  Wills— 5 


66  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

The  instructions  for  the  preparation  of  the  will  were  given  to  Mr. 
Mills,  an  old  friend,  who  conveyed  them  to  the  testator's  solicitor,  by 
whom  they  were  laid  before  counsel  to  prepare  a  draft  will. 

From  the  affidavits  of  these  gentlemen  it  appeared  that  by  his  in- 
structions the  testator  directed  that  two  sums  of  £10,000  each,  part  of  a 
specific  sum  of  £24,000  dealt  with  in  the  will,  should  be  set  apart  to  be 
settled  to  the  use  and  benefit  of  his  two  unmarried  daughters.  Miss 
Georgiana  Boehm  and  Miss  Florence  Boehm,  and  their  children,  after 
the  death  of  his  wife,  who  was  to  have  the  life  interest  if  she  survived 
him.  By  inadvertence  the  conveyancing  counsel  in  settling  the  draft 
inserted  the  word  "Georgiana"  in  both  the  clauses  of  the  will  relating 
to  the  gifts  to  the  unmarried  daughters,  and  omitted  the  word  "Flor- 
ence" altogether;  so  that  there  were  two  gifts  of  £10,000  to  Miss  Geor- 
giana Boehm,  while  Miss  Florence  Boehm  was  left  totally  unprovided 
for.  This  error  was  repeated  in  the  engrossed  copy  of  the  draft  which 
was  ultimately  executed  by  the  testator.  The  draft  of  the  will,  together 
with  an  epitome  of  its  provisions,  were  taken  to  the  testator  by  Mr. 
Mills.  The  draft  was  never  read  over  to  him,  but  the  epitome  was. 
In  the  epitome  the  names  "Georgiana"  and  "Florence"  were  accurately 
gfiven,  and  the  testator  read  it  over  and  made  corrections  in  it.  The 
testator  did  not  read  the  will  over  at  the  time  of  execution,  and  it  was 
perfectly  certain  that  his  attention  was  not  drawn  to  the  mistake,  which 
was  only  discovered  after  his  death, 

Jeune,  J.  I  am  asked  to  grant  probate  of  the  will  of  Sir  Joseph 
Edgar  Boehm  with  the  word  "Georgiana"  omitted  in  two  places,  in 
what,  on -the  face  of  the  will,  professes  to  be  a  gift  in  her  favour.  I 
had  some  doubt  about  deciding  this  matter  on  motion;  but  as  repre- 
sentatives of  all  existing  interests  agreed  to  its  being  so  decided,  and 
future  interests  will  be  protected  rather  than  prejudiced  by  this  mode 
of  dealing  with  this  question,  I  see  no  objection  to  adopting  it.  It  is 
clear  from  the  evidence  that  the  testator  intended  to  give  £20,000  in 
equal  moieties  to  trustees  for  each  of  his  daughters,  Florence  and 
Georgiana,  and  the  instructions  for  the  will  correctly  expressed  this ; 
but  the  draftsman,  instead  of  inserting  in  the  draft  of  the  will  a  clause 
of  gift  in  favour  of  Georgiana,  and  then  a  similar  clause  in  favour 
of  Florence,  inserted  the  name  of  Georgiana  in  the  second  clause  as 
well  as  in  the  first.  It  is  proved  that  the  testator  did  not  read  or  have 
read  over  to  him  the  will,  but  did  read  what  professed  to  be  an  epitome 
of  it,  such  epitome  being  in  accordance  with  the  instructions,  and  cor- 
rectly representing  the  testator's  intentions.  In  a  sense,  therefore,  the 
word  "Georgiana"  was  clearly  inserted  in  the  two  places  in  question  in 
error,  though  the  real  and  complete  mistake  was  in  not  inserting  Flor- 
ence in  place  of  Georgiana.  In  view  of  the  case  of  Morrell  v.  Morrell,  7 
P.  D.  68,  following  Fulton  v.  Andrew,  Law  Rep.  7  H.  L.  448,  and  the 
earher  authority  of  In  the  Goods  of  Duane,  2  S.  &  T.  590,  mistake  is  to 
b^  regarded  as  a  question  of  fact  depending  on  the  circumstances  of 


Ch.  3)  TESTAMENTARY   CAPACITY   AND   INTENT.  67 

each  case,  and  t!i:re  is  now  no  difficulty,  in  circumstances  sucli  as  those 
of  the  above  cases,  in  striking  out  a  clause,  or  a  single  word,  if  shewn 
to  have  been  inserted  by  mistake.  Indeed,  in  the  present  case  no  such 
difficulty  occurs  as  arose  in  Fulton  v.  Andrew,  Law  Rep.  7  H.  L.  -1^8, 
in  reference  to  the  decisions  in  Atter  v.  Atkinson,  Law  Rep.  1  P.  &  D. 
665,  Guardhouse  v.  Blackburn,  Law  Rep.  1  P.  &  D.  109,  and  Harter 
v.  Harter,  Law  Rep.  3  P.  &  D.  11,  from  a  presumption  of  knowledge 
and  approval  arising  from  the  reading  of,  or  hearing  read,  a  will  by  a 
competent  testator,  because  here  the  evidence  is  that  the  testator,  re- 
lying on  the  epitome,  never  read  or  heard  the  will  read. 

My  difficulty  at  the  argument  was  that,  in  the  above  cases,  to  strike 
out  the  word  or  words  inserted  in  error  left  the  will  what  the  testator 
intencled  it  to  be.  Here,  to  strike  out  the  word  ."Georgiana"  and  to 
leave  a  blank  in  its  place  does  not  leave  the  will  what  the  testator  in- 
tended it  should  be,  and  I  am  not  aware  that  there  is  any  exact  au- 
thority for  striking  a  word  out  of  a  will  under  these  circumstances. 
This  case  would  seem  to  be  the  same  as  it  would  have  been  in  Morrell 
V.  Morrell,  7  P.  D.  68,  if  the  jury  had  found  that  the  mistake  con- 
sisted not  merely  in  having  put  in  the  word  "forty,"  but  in  not  having 
put  in  the  proper  number,  "four  hundred,"  instead  of  "forty" — in 
fact,  had  answered  the  second  question  put  to  them  differently  from  the 
way  in  which  they  did.  The  cases  of  In  the  Goods  of  Bushell,  13  P. 
D.  7,  and  In  the  Goods  of  Huddleston,  63  L.  T.  (N.  S.)  255,  refer,  I 
think,  only  to  the  correction  of  clerical  errors;  and  the  language  of 
the  Judicial  Committee  in  Rhodes  v.  Rhodes,  7  App.  Cas.  192,  points 
to  the  difficulty  of  rejecting  words  where  their  rejection  alters  the 
sense  of  those  which  remain.*^  But  I  think  that  the  application  of  the 
principle  of  striking  out  a  word  clearly  inserted  in  mistake  may  be 
safely  extended,  if  it  be  an  extension,  to  a  case  where  the  effect  of  its 
rejection  may  be  to  render  ambiguous,  or  even  insensible,  a  clause  of 
which  it  formed  part.  If  a  person  by  fraud  obtained  the  substitution 
of  his  name  for  that  of  anotlier  in  a  will  it  would  be  strange  if  his  name 
could  not  be  struck  out,  although  the  rest  of  the  clause  in  which  it  oc- 
curred became  thereby  meaningless.  It  may  be  that  in  the  present  case 
the  effect  of  striking  out  the  name  in  question  will  be,  on  the  construc- 
tion of  the  will,  as  it  will  then  read,  to  carry  out  the  testator's  inten- 
tions completely.    It  is  not  for  me  to  decide  that.    But  even  if  to  strike 

43  "A  much  more  difficult  question  arises  where  the  rejection  of  words  alters 
the  sense  of  those  which  remain.  For,  even  though  the  court  is  convinced  that 
the  words  were  improperly  introduced,  so  that,  if  the  instrument  were  inter 
vivos,  they  would  reform  the  instrument  and  order  one  in  different  words  to 
be  executed,  it  cannot  malce  the  dead  man  execute  a  new  instrument ;  and  there 
seems  much  difficulty  in  treating  the  will,  after  its  sense  is  thus  altered,  as 
valid  within  the  ninth  section  of  St.  7  Wm.  IV  &  1  Vict.  c.  26 ;  the  signature  at 
the  end  of  the  will  required  by  that  enactment  having  been  attached  to  what 
bore  quite  a  different  meaning."  Lord  Blackburn,  in  Rhodes  v.  Rhodes,  7  A.pp. 
Cas.  192,  198  (1882). 


68  LAST  WILLS  AND  TESTAMENTS.  (Part   1 

out  a  name  inserted  in  error  and  leave  a  blank  have  not  the  effect  of 
giving  full  effect  to  the  testator's  wishes,  I  do  not  see  why  we  should 
not,  so  far  as  we  can,  though  we  may  not  completely,  carry  out  his 
intentions.  I  am,  therefore,  willing  to  grant  probate  of  this  will  as 
prayed  with  the  omissions  specified. 


BRISCO  V.  BAILLIE  HAMILTON. 

(High  Ctourt  of  Justice,  Probate  Division.     [1902]  P.  234.) 

Suit  for  revocation  of  probate,  and  for  a  fresh  grant  omitting  cer- 
tain words. 

The  will  of  testatrix  contained,  among  other  things,  a  devise  of  "all 
that  my  undivided  moiety  of  and  in  certain  manors,  farms,  lands,  and 
hereditaments"  in  certain  parishes  in  the  county  of  Lincoln.  These 
estates  belonged  entirely  and  absolutely  to  the  testatrix  as  surviving 
joint  tenant  under  her  father's  will.  The  plaintiff  as  devisee  claimed 
that  the  deceased  did  not  know  and  approve  of  the  words  "my  undi- 
vided moiety  of  and^in"  contained  in  the  will ;  that  she  gave  no  instruc- 
tion Tor  their  insertion ;  that  they  were  never  read  over  or  explained 
to  her;  and  that,  if  they  were  read  over  by  or  to  or  were  explained  to 
her,  she  did  not  understand  their  meaning,  and  was  not  aware  of  their 
nature  and  effect.  The  plaintiff  therefore  claimed  probate  omitting 
these  words. 

If  the  devise  now  in  question  were  held  to  carry  only  a  moiety  of 
the  Lincolnshire  estates,  or  if  the  devise  were  held  to  carry  no  part 
thereof  to  the  plaintiff  and  his  family,  the  remaining  moiety  or  the 
whole  of  those  estates,  as  the  case  might  be,  would  appear  to  pass 
under  the  residuary  devise  of  real  estate  to  Mrs.  Arbuthnot  (the 
fourth-named  defendant)  and  her  family. 

It  appeared  from  the  evidence  of  Mr.  Charles  Edward  Jones,  the 
family  solicitor,  that  the  draft  of  the  will,  instructions  for  which  were 
given  in  1892,  was  sent  to  the  testatrix  in  July  of  that  year ;  that  she 
retained  it  till  March,  1893 ;  and  that  she  then  took  it  to  the  solicitor 
with  directions  as  to  certain  alterations  which  she  desired.  There  was, 
however,  no  evidence  that  she  had,  in  fact,  ever  read  over,  or  had  read 
over  to  her,  either  the  draft  or  the  will ;  and  a  letter  from  the  solicitor 
to  the  testatrix  was  put  in,  from  which  the  contrary  might  be  inferred. 

Jeune,  P.f  No  doubt,  if  it  can  be  proved  that  a  will  has  been  really 
brought  to  the  mind  of  a  testator  or  testatrix,  and  has  been  duly  ex- 
ecuted, it  is  difficult — perhaps  impossible — in  law  to  hold  that  anything 
contained  in  the  will  is  a  mistake.  But,  as  was  pointed  out  by  the 
House  of  Lords  in  Fulton  v.  Andrew,  [1875]  L.  R.  7  H.  L.  448,  the 
question  is  still  left  open  whether  the  will  was  or  was  not  really 
brought  to  the  notice  of  the  testator  or  testatrix.    That  question  is  a 


'to' 


fTlie  statement  of  facts  is  rewritten  and  abbreviated. 


Ch.  3)  TESTAMENTARY  CAPACITY  AND   INTENT,  69 

question  of  fact  depending  upon  the  circumstances  of  the  particti'lar 
case.  In  the  present  case  I  am  satisfied  that  the  particular  portion  of 
the  will  before  me  was  not  brought  to  the  knowledge  of  the  testatrix 
in  such  a  way  that  she  must  be  assumed  to  have  confirmed  it  by  her 
subsequent  execution  of  the  will.  From  the  evidence  before  me,  I 
have  no  doubt  that  a  mistake  was  made  by  the  insertion  of  the  words 
now  in  question ;  and,  although  it  is  quite  true  that  the  draft  was  sent 
to  the  testatrix,  it  was  accompanied  by  a  letter  from  the  solicitor  which 
in  effect  stated  that  there  had  been  no  material  departure  from  the 
terms  of  the  sister's  will,  upon  which  it  was  modelled. 

Taking  those  facts,  together  with  the  language  of  the  document  it- 
self, it  is,  to  my  mind,  clearly  shown  that  the  testatrix  never  intended 
to  impose  any  limitation  or  restriction  upon  the  particular  bequest; 
and  if  a  jury  were  asked  the  question  they  would  decide  without  hesi- 
tation that  the  portion  of  the  will  in  question  was  not  approved  by  the 
testatrix.  I  therefore  consider  it  my  duty  to  hold  that  those  words  do 
not  form  part  of  the  will  of  the  testatrix.  I  revoke  the  original  pro- 
bate, and  decree  a  fresh  grant  of  probate  with  the  omission  of  those 
words.** 

In  re  GOODS  OF  BUSHELL.  (/ 

(High  Ck>urt  of  Justice,  Probate  Division,  1887.    13  P.  D.  7.) 

Samuel  H.  Bushell,  late  of  Worcester  Park,  in  the  county  of  Sur- 
rey, died  June  8,  1887,  leaving  a  will  duly  executed  dated  November  27, 
1885.  The  will  was  prepared  by  his  solicitor  from  his  instructions, 
which  were  read  over  to  him  and  fully  explained,  and  on  November 
26,  1885,  he  executed  a  draft,  which  was  also  read  over  to  him.  When 
the  engrossment  of  the  draft  was  brought  to  him  next  day,  he  asked 
whether  it  corresponded  with  the  draft,  and  being  assured  that  it  did, 

4*  In  Fulton  v.  Andrew,  L.  R,  7  H.  L.  448  (18T5),  where  the  jury  found  that 
the  testator  did  not  know  and  approve  of  the  contents  of  the  residuary  clause 
of  the  will,  though  he  did  know  and  approve  of  the  rest,  and  the  House  of 
Lords  remitted  the  case  to  the  Court  of  Probate  with  directions  to  grant  such 
probate,  with  the  residuary  clause  left  out,  as  might  be  right.  Lord  Cairns,  in 
refusing  to.  assent  to  the  argument  that  a  testator  who  reads  the  will  he  signs, 
or  has  it  read  to  him,  necessarily  knows  the  contents,  said  (pages  460,  461): 
"It  is  said  that  it  has  been  established  by  certain  cases  to  which  I  will  presr 
ently  refer  that  in  judging  of  the  validity  of  a  will  or  of  part  of  a  will,  if  you 
find  that  the  testator  was  of  sound  mind,  memory,  and  understanding,  and  if 
you  find,  farther,  that  the  will  was  read  over  to  him,  or  read  over  by  him,  there 
is  an  end  of  the  case ;  that  you  must  at  once  assume  that  he  was  aware  of  the 
contents  of  the  will ;  and  that  there  is  a  positive  and  unyielding  rule  of  law 
that  no  evidence  against  that  presumption  can  be  received.  My  Lords,  I  should 
in  this  case,  as  indeed  in  all  other  cases,  greatly  deprecate  the  introduction  or 
creation  of  fixed  and  unyielding  rules  of  law  which  are  not  imposed  by  act  of 
Parliament.  I  think  it  would  be  greatly  to  be  deprecated  that  any  positive  vule 
as  to  dealing  with  a  question  of  fact  should  be  laid  down,  and  laid  down  now 
for  the  first  time,  unless  the  Legislature  has,  in  the  shape  of  an  act  of  Parlia- 
ment, distinctly  imposed  that  rule." 


70  LAST   WILLS   AND   TESTAMENTS.  (Part   1 

he  did  not  require  it  to  be  read  over  to  him,  but  executed  it  without 
further  examination.  Among  other  bequests  in  the  will  was  a  legacy 
of  is, 000  to  the  "British"  Royal  Infirmary,  but  in  the  executed  draft 
the  bequest  was  to  the  "Bristol"  Royal  Infirmary,  which  it  appeared 
from  the  affidavits  expressed  his  real  intention. 

B.  Deane,  moved  for  probate  with  the  substitution  of  the  word  "Bris- 
tol" for  "British." 

Butt,  J.  I  see  no  reason  why  the  alteration  should  not  be  made.  I 
will  grant  probate  with  the  word  "Bristol"  inserted,  instead  of  the  word 
"British,"  on  the  production  of  an  affidavit  that  there  is  no  such  in- 
stitution as  the  "British"  Royal  Infirmary.*"* 

45  This  case  was  disapproved  in  In  the  Goods  of  Louis  Schott,  [1901]  P.  190, 
where  Jeune,  P.,  stated  that  the  registrar  informed  him  that  Sir  James  Hau- 
nen,  who  was  President  at  the  time,  refused  to  allow  the  order  of  Butt,  J.,  in 
In  the  Goods  of  Bushell,  supra,  to  be  carried  Into  practice.  Jeune,  P.,  said 
during  the  argument  of  In  the  Goods  cf  Louis  Schott:  "I  can  strike  out  words, 
but  I  cannot  insert  anything." 

The  question  is  really  one  of  the  use  of  extrinsic  evidence  in  the  interpreta- 
tion of  provisions  In  a  will.  While  the  question  is  one  in  the  law  of  evidence, 
a  mention  of  some  of  the  problems  is  needed  here. 

"In  the  case  of  adverse  claimants  of  the  same  gift,  the  following  rules  apply: 

"1,  If  one  (being  competent  to  take)  alone  precisely  answers  the  whole  desig- 
nation of  the  will,  or  is  identified  by  the  context,  extrinsic  evidence  tliat  the 
other  was  intended  is  incompetent. 

"2.  If  both  precisely  answer  the  whole  designation  and  indications  of  the 
will,  a  latent  ambiguity  or  'equivocation'  is  presented,  and  extrinsic  evidence 
is  competent ;  and  in  this  class  of  cases,  direct  evidence  of  the  testator's  inten- 
tion, even  by  proving  his  declarations  of  purpose,  is  admissible. 

"3.  If  neither  precisely  answers  the  designation  and  indications  of  the  will, 
but  both  do  so  approximately,  this  is  also  a  case  of  latent  ambiguity,  admit- 
ting extrinsic  evidence ;  and  in  this  class  of  cases,  too,  according  to  the  better 
opinion,  the  testator's  declarations  of  intent  may  be  proved." 

Abbott's  Trial  Evidence  (2d  Ed.)  179. 

But  as  to  proposition  1.  supra,  see  the  argument  in  4  Wigmore  on  Evidence, 
§  2462,  against  the  rule  that  you  cannot  disturb  a  plain  meaning.  The  theory 
of  the  rule  is -there  declared  to  be  unsound  because  "The  ordinary  standard,  or 
'plain  meaning,'  is  simply  the  meaning  of  the  people  who  did  not  write  the 
document.  The  fallacy  consists  in  assuming  that  there  is  or  ever  can  be  some 
one  real  or  absolute  meaning.  In  truth,  there  can  be  only  some  person's  mean- 
ing ;  and  that  person,  whose  meaning  the  law  is  seeking,  is  the  writer  of  the 
document."  Id.  And  on  the  question  of  the  policy  of  the  rule  it  is  stated  that: 
"The  truth  is  that  whatever  virtue  and  strength  lies  in  the  argument  for  the 
antique  rule  leads,  not  to  a  fixed  rule  of  law,  but  only  to  a  general  maxim 
of  prudent  discretion."  Id.  And  the  author  concludes:  "There  is,  then,  neither 
in  theory  nor  in  policy  any  basis  for  an  absolute  rule  declaring  that  when  a 
word  has  a  'plain  meaning' — i.  e.,  by  the  popular  standard — neither  the  local 
nor  the  mutual  nor  the  individual  standard  can  be  substituted.  Such  a  rule  is 
still  maintained  by  many  utterances  like  those  above  quoted.  But  its  vogue 
Is  disappearing."    Id. 

For  an  extreme  case  supporting  proposition  1,  quoted  supra  from  Abbott's 
Trial  Evidence,  see  Union  Trust  Co.  v.  St  Luke's  Hospital,  74  App.  Div.  330, 
77  N.  Y.  Sui)p.  528  (1902),  affirmed  in  175  N.  Y.  505,  67  N.  E.  1090  (1903).  That 
case  might  have  been  deemed  to  fall  under  proposition  3,  supra;  but  in  any 
event  Faulkner  v.  National  Sailors'  Home,  155  Mass.  458,  29  N.  E.  645  (1S02), 
would  seem  to  be  a  sounder  decision. 

In  Tilton  v.  American  Bible  Society,  60  N.  H.  377,  49  Am.  Rep.  321  (1880), 
which  came  imder  proposition  2,  supra,  Doe,  C.  J.,  for  the  court,  said:  "The 
question  is  not  by  what  name  any  Bible  Society  was  known  to  others,  but 


Ch,  3)  TESTAMENTARY  CAPACITY   AND   INTENT.  71 

PATCH  V.  WHITE. 

(Supreme  Court  of  United  States,  1886.    117  U.  S.  210,  6  Sup.  Ct.  617,  710,  2t) 

L.  Ed.  860.) 

Bradley,  J.  Ejectment  for  two  undivided  thirds  of  a  lot  of  land  in 
Washington  city,  known  on  the  plats  and  ground-plan  of  the  city  as 
lot  No.  3,  square  406,  fronting  50  feet  on  E  street  north.  Plea,  not 
guilty.  The  plaintiff,  John  Patch,  now  plaintiff  in  error,  claims  the 
lot  under  Henry  Walker,  devisee  of  James  Walker.  The  latter  died 
seised  of  the  lot  in  1832,  and  by  his  last  will,  dated  in  September  of 
that  year,  devised  to  Henry  Walker  as  follows,  to-wit:  "I  bequeath 
and  give  to  my  dearly-beloved  brother,  Henry  Walker,  forever,  lot 
numbered  six,  in  square  four  hundred  and  three,  together  with  the 
improvements  thereon  erected  and  appurtenances  thereto  belonging." 
The  testator  did  not  own  lot  No.  6  in  square  403,  but  did  own  lot  No. 
3,  in  square  406,  the  lot  in  controversy ;  and  the  question  in  the  cause 
is  whether  the  parol  evidence  offered,  and  by  the  court  provisionally 
received,  was  sufficient  to  control  the  description  of  the  lot  so  as  to 
make  the  will  apply  to  lot  No.  3,  in  square  406.  The  judge  at  the  trial 
held  that  it  was  not,  and  instructed  the  jury  to  find  a  verdict  for  the 
defendant.  The  court,  in  general  terms,  sustained  this  ruling,  and  ren- 
dered judgment  for  the  defendant,  and  that  judgment  is  brought  here 
by  writ  of  error  for  review  upon  the  bill  of  exceptions  taken  at  the 
trial. 

The  testator  at  the  time  of  making  his  will,  and  at  his  death,  had 
living  a  wife,  Ann  Sophia,  an  infant  son,  James,  a  mother,  Dorcas 
Walker,  three  brothers,  John,  Lewis,  and  Henry,  (the  latter  being  only 
eleven  years  old,)  and  three  sisters,  Margaret  Peck,  Louisa  Ballard, 
and  Sarah  McCallion,  and  no  other  near  relations,  and  all  of  these  are 
provided  for  in  his  will  if  the  change  of  description  of  the  lot  given  to 
Henry  is  admissible ;  otherwise  Henry  is  unprovided  for,  except  in  a 
residuary  bequest  of  personal  property  in  connection  with  others.  The 
following  are  the  material  clauses  of  the  will :  After  expressing  the 
ordinary  wishes  and  hopes  with  regard  to  the  disposal  of  his  body  and 
a  future  life,  the  testator  adds :  "And  touching  wordly  estate,  where- 
with it  has  pleased  Almighty  God  to  bless  me  in  this  life,  I  give,  devise, 

which  one  of  several  Bible  Societies  was  intended  by  the  testator.  The  tes- 
tanaentary  name,  or  other  testamentary  description,  of  a  legatee  (whether  an 
individual  or  a  society,  incorporated  or  unincorporated),  is  evidence  of  the 
testator's  intention.  Evidence  showing  what  name  was  given  to  a  Bible  So- 
ciety in  its  charter,  what  name  it  used  or  recognized  as  its  own,  and  by  what 
name  or  names  it  was  known  to  others,  tends  to  prove  a  name  by  which  the 
legatee  miijht  have  been  known  to  the  testator,  and  a  name  which  he  might 
have  used  in  his  will  to  express  his  intention.  But  the  society  intended  by 
him,  and  identified  by  competent  evidence,  is  the  legatee,  by  whatever  name 
described  in  the  will,  and  notwithstanding  any  other  name  or  names  by  which 
It  may  have  been  invariably  or  usually  known  to  others.  *  *  *  a  person 
known  to  the  testator  as  A.  B.,  and  to  all  others  as  C.  D.,  may  take  a  legacy 
given  to  A.  B."  GO  N.  H.  382,  .383,  49  Am.  Rep.  321.  Compare  In  the  Gotxla 
of  William  Wrenn,  [1008]  2  Jr.  R.  370. 


72 


LAST   WILLS   AND   TESTAMENTS.  (Part  1 


and  dispose  of  the  same  in  the  following  manner  and  form."  He  then 
gives  and  bequeaths  to  his  wife  one-third  of  all  his  personal  estate, 
forever,  and  the  use  of  one-third  of  his  real  estate  for  life,  remainder 
to  his  infant  son,  James.    He  then  proceeds : 

"I  bequeath  and  give  to  my  dear  and  affectionate  mother,  Dorcas 
Walker,  forever,  all  of  lot  numbered  seven,  in  square  one  hundred  and 
six,  as  laid  down  on  the  plan  of  the  city  of  Washington,  together  with 
all  the  improvements  thereon  erected  and  appurtenances  thereto  belong- 


ing. 


"I  bequeath  and  give  to  my  dearly-beloved  brother  John  Walker, 
forever,  all  of  lot  numbered  six,  in  square  one  hundred  and  six,  with 
the  two-story  brick  house,  back  building,  and  all  appurtenances  thereto 
belonging. 

"I  bequeath  and  give  to  my  dearly-beloved  brother,  Lewis  Walker, 
forever,  lots  twenty-three,  twenty- four,  and  twenty-five,  in  square  num- 
bered one  hundred  and  six,  together  with  a  two-story  brick  building, 
with  a  basement  story  back  building,  and  all  appurtenances  thereto  be- 
longing and  erected  on  one  or  more  of  said  lots. 

"I  bequeath  and  give  to  my  dearly-beloved  brother  Henry  Walker, 
forever,  lot  numbered  six,  in  square  four  hundred  and  three,  together 
with  the  improvements  thereon  erected  and  appurtenances  thereto  be- 
longing." 

Then,  after  giving  to  his  three  sisters  and  his  infant  son,  respectively, 
other  specific  lots,  with  houses  thereon,  he  proceeds  as  follows: 

"I  also  bequeath  and  give  to  my  infant  son,  James  Walker,  for- 
ever, the  balance  of  my  real  estate  believed  to  be  and  to  consist  in  lots 
numbered  six,  eight,  and  nine,  with  a  house,  part  brick  and  part  frame, 
erected  on  one  of  said  lots,  in  square  one  hundred  and  sixteen;  lots 
thirty-one,  thirty-two,  and  thirty-three,  in  square  numbered  one  hun- 
dred and  forty,  and  a  slaughter-house  erected  on  one  of  said  lots ;  lots 
numbered  eight  and  eleven,  in  square  numbered  two  hundred  and  fifty ; 
and  lot  numbered  twenty-eight,  in  square  numbered  one  hundred  and 
seven;  and,  further,  I  bequeath  and  give  to  my  infant  son,  James 
Walker,  one  thousand  dollars,  to  be  paid  out  of  my  personal  estate, 
and  applied  at  the  discretion  of  his  guardian  hereinafter  appointed,  for 
the  education  of  my  son,  James  Walker." 

He  then  adds : 

"The  balance  of  my  personal  estate,  whatever  it  may  be,  I  desire 
shall  be  equally  divided  between  my  mother,  Dorcas  Walker,  my  sister 
Sarah  McCallion,  and  my  brothers,  Jno.,  Lewis,  and  Henry  Walker." 

It  is  clear  from  the  will  itself : 

(1)  That  the  testator  intended  to  dispose  of  all  his  estate. 

(2)  That  he  believed  he  had  disposed  of  it  all  in  the  clauses  prior 
to  the  residuary  clause,  except  the  specific  lots  thereby  given  to  his  son. 

(3)  That  when  he  gave  to  his  brother  Henry  lot  number  6,  in  square 
403,  he  believed  he  was  giving  him  one  of  his  own  lots.  On  general 
principles  he  would  not  have  given  him  a  lot  which  he  did  not  own; 


Ch.  3)  TESTAMENTARY    CAPACITY   AND   INTENT.  73 

and  he  expressly  says:  Touching  worldly  estate,  wherewith  it  has 
pleased  Almighty  God  to  bless  me  in  this  life,  I  give,  devise,  and  dis- 
pose of  the  same  in  the  following  manner." 

(4)  That  he  intended  to  give  a  lot  with  improverrjents  thereon 
erected. 

Now,  the  parol  evidence  discloses  the  fact  that  there  was  an  evident 
misdescription  of  the  lot  intended  to  be  divided.  It  shows — First,  as 
before  stated,  that  the  testator  at  the  time  of  making  his  will,  and  at 
the  time  of  his  death,  did  not,  and  never  did,  own  lot  6,  in  square  403, 
but  did  own  lot  3,  in  square  406;  secondly,  that  the  former  lot  had 
no  improvements  on  it  at  all,  and  was  located  on  Ninth  street,  between 
I  and  K  streets,  while  the  latter,  which  he  did  own,  was  located  on  E 
street,  between  Eighth  and  Ninth  streets,  and  had  a  dwelling-house  on 
it,  and  was  occupied  by  the  testator's  tenants, — a  circumstance  which 
precludes  the  idea  that  he  could  have  overlooked  it. 

It  seems  to  us  that  this  evidence,  taken  in  connection  with  the  whole 
tenor  of  the  will,  amounts  to  demonstration  as  to  which  lot  was  in  the 
testator's  mind.  It  raises  a  latent  ambiguity.  The  question  is  one  of 
identification  between  two  lots,  to  determine  which  was  in  the  testator's 
mind,' — whether  lot  3,  square  406,  which  he  owned,  and  which  had  im- 
provements erected  thereon,  and  thus  corresponded  with  the  implica- 
tions of  the  will,  and  with  part  of  the  description  of  the  lot,  and  ren- 
dered the  devise  effective;  or  lot  6,  square  403,  which  he  did  not  own, 
which  had  no  improvements  thereon,  and  which  rendered  the  devise  in- 
effective. 

It  is  to  be  borne  in  mind  that  all  the  other  property  of  the  testator 
except  this  one  house  and  lot  was  disposed  of  to  his  other  devisees, — 
at  least,  that  was  his  belief  as  expressed  in  his  will,  and  there  is  no 
evidence  to  the  contrary;  while  this  lot  (though  he  believed  he  had 
disposed  of  it)  was  not  disposed  of  at  all,  unless  it  was  devised  to  his 
brother  Henry,  by  the  clause  in  question.  In  view  of  all  this,  and 
placing  ourselves  in  the  situation  of  the  testator  at  the  time  of  making 
his  will,  can  we  entertain  the  slightest  doubt  that  he  made  an  error  of 
description,  so  far  as  the  numbers  in  question  are  concerned,  when  he 
wrote  or  dictated  the  clause  under  consideration? 

What  he  meant  to  devise  was  a  lot  that  he  owned;  a  lot  with  im- 
provements on  it ;  a  lot  that  he  did  not  specifically  devise  to  any  other 
of  his  devisees.  Did  such  a  lot  exist?  If  so,  what  lot  was  it?  We 
know  that  such  a  lot  did  exist,  and  only  one  such  lot  in  the  world,  and 
that  this  lot  was  the  lot  in  question  in  this  cause,  namely,  lot  number 
3,  in  square  406.  Then  is  it  not  most  clear  that  the  words  of  the 
will,  "lot  numbered  six,  in  square  four  hundred  and  three,"  contained 
a  false  description?  The  testator,  evidently  by  mistake,  put  "three" 
for  "six,"  and  "six"  for  "three,"  a  sort  of  misspeech  to  which  the 
human  mind  is  perversely  addicted.  It  is  done  every  day  even  by  pains- 
taking people.  Dr.  Johnson,  in  the  preface  to  his  Dictionary,  well 
says :   "Sudden  fits  of  inadvertence  will  surprise  vigilance,  slight  avo- 


74  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

cations  will  seduce  attention,  and  casual  eclipses  of  the  mind  will  dark- 
en learning."  Not  to  allow  the  correction  of  such  evident  slips  of  at- 
tention, when  there  is  evidence  by  which  to  correct  it,  would  be  to  ab- 
rogate the  old  maxim  of  the  law,  "falsa  demonstratio  non  nocet." 

It  is  undoubtedly  the  general  rule  that  the  maxim  just  quoted  is  con- 
fined in  its  application  to  cases  where  there  is  sufficient  in  the  will  to 
identify  the  subject  intended  to  be  devised  independently  of  the  false 
description,  so  that  the  devise  would  be  effectual  without  it.  But  why 
should  it  not  apply  in  every  case  where  the  extrinsic  facts  disclosed 
make  it  a  matter  of  demonstrative  certainty  that  an  error  has  crept 
into  the  description,  and  what  that  error  is?  Of  course  the  contents 
of  the  will,  read  in  the  light  of  the  surrounding  circumstances,  must 
lead  up  to  and  demand  such  correction  to  be  made. 

It  is  settled  doctrine  that  as  a  latent  ambiguity  is  only  disclosed  by 
extrinsic  evidence,  it  may  be  removed  by  extrinsic  evidence.  Such  an 
ambiguity  may  arise  upon  a  will,  either  when  it  names  a  person  as  the 
object  of  a  gift,  or  a  thing  as  the  subject  of  it,  and  there  are  two  per- 
sons or  things  that  answer  such  name  or  description ;  or,  secondly,  it 
may  arise  when  the  will  contains  a  misdescription  of  the  object  or  sub- 
ject; as  where  there  is  no  such  person  or  thing  in  existence,  or,  if  in 
existence,  the  person  is  not  the  one  intended,  or  the  thing  does  not 
belong  to  the  testator. 

The  first  kind  of  ambiguity,  where  there  are  two  persons  or  things 
equally  answering  the  description,  may  be  removed  by  any  evidence 
that  will  have  that  effect,  either  circumstances  or  declarations  of  the 
testator.  1  Jarm.  Wills,  370;  Hawk.  9,  10.  Where  it  consists  of  a 
misdescription,  as  before  stated,  if  the  misdescription  can  be  struck 
out  and  enough  remain  in  the  will  to  identify  the  person  or  thing,  the 
court  will  deal  with  it  in  that  way,  or,  if  it  is  an  obvious  mistake,  will 
read  it  as  if  corrected.  The  ambiguity  in  the  latter  case  consists  in 
the  repugnancy  between  the  manifest  intent  of  the  will  and  the  mis- 
description of  the  donee  or  the  subject  of  the  gift.  In  such  a  case  evi- 
dence is  always  admissible  to  show  the  condition  of  the  testator's  fam- 
ily and  estate,  and  the  circumstances  by  which  he  was  surrounded  at 
the  time  of  making  his  will.  1  Jarm.  Wills,  364,  3G5 ;  1  Roper,  Leg. 
(4th  Ed.)  297 ;   2  Williams,  Ex'rs,  988,  1032. 

Mr.  Williams  (afterwards  Mr.  Justice  Williams)  says:  "Where  the 
name  or  description  of  a  legatee  is  erroneous,  and  there  is  no  reason- 
able doubt  as  to  the  person  who  was  intended  to  be  named  or  described, 
the  mistake  shall  not  disappoint  the  bequest.  The  error  may  be  recti- 
fied *  *  *  (1)  by  the  context  of  the  will;  (2)  to  a  certain  extent 
by  parol  evidence.  *  *  *  A  court  may  inquire  into  every  material 
fact  relating  to  the  person  who  claims  to  be  interested  under  the  will, 
and  to  the  circumstances  of  the  testator,  and  of  his  family  or  affairs, 
for  the  purpose  of  enabling  the  court  to  identify  the  person  intended 
by  the  testator."  Page  989.  Again,  he  says  on  page  1032:  "Mis- 
takes in  the  description  of  legacies,  like  those  in  the  description  of  leg- 


Ch.  3)  TESTAMENTARY   CAPACITY   AND   INTENT.  75 

atees,  m?.y  be  rectified  by  reference  to  the  terms  of  the  gift  and  evidence 
of  extrinsic  circumstances  taken  together.  The  error  of  the  testator, 
says  Swinburne,  in  the  proper  name  of  the  thing  bequeathed,  doih  not 
hurt  the  vahdity  of  the  legacy,  so  that  the  body  or  substance  of  the 
thing  bequeathed  is  certain;  as,  for  instance,  the  testator  bequeaths 
his  horse  Criple  when  the  name  of  the  horse  was  TuHp,  this  mistake 
shall  not  make  the  legacy  void,  for  the  legatory  may  have  the  horse 
by  the  last  denomination ;  for  the  testator's  meaning  was  certain  that 
he  should  have  the  horse.  If,  therefore,  he  hath  the  thing  devised,  it 
is  not  material  if  he  hath  it  by  the  right  or  the  wrong  name."  See, 
also,  Roper,  Leg.  297. 

The  rule  is  very  distinctly  laid  down  by  Sir  James  Wigram,  who 
says:  "A  description,  though  false  in  part,  may,  with  reference  to 
extrinsic  circumstances,  be  absolutely  certain,  or  at  least  sufficiently 
so  to  enable  a  court  to  identify  the  subject  intended;  as  where  a  false 
description  is  superadded  to  one  which  by  itself  would  have  been  cor- 
rect. Thus,  if  a  testator  devise  his  black  horse,  having  only  a  white 
one,  or  devise  his  freehold  houses,  having  only  leasehold  houses,  the 
white  horse  in  the  one  case  and  the  leasehold  houses  in  the  other  would 
clearly  pass.  In  these  cases  the  substance  of  the  subject  intended  is  cer- 
tain, and  if  there  is  but  one  such  substance,  the  superadded  descrip- 
tion, though  false,  introduces  no  ambiguity,  and  as  by  the  supposition 
the  rejected  words  are  inapplicable  to  any  subject,  the  court  does  not 
alter,  vary,  or  add  to  the  effect  of  the  will  by  rejecting  them."  Wig. 
Wills,  53.  Of  course  when  the  author  speaks  of  the  rejected  Words 
as  being  "inapplicable  to  any  subject,"  he  means  inapplicable  because 
the  subject  is  not  in  existence  or  does  not  belong  to  the  testator. 

The  case  of  Roman  Catholic  Orphan  Asylum  v.  Emmons,  3  Bradf. 
Sur.  144,  which  arose  before  the  surrogate  of  New  York,  well  illus- 
trates the  application  of  the  rule.  There  a  testatrix  bequeathed  her 
shares  of  the  Mechanics'  Bank  stock  to  the  orphan  asylum.  She  had 
no  bank  stock  except  10  shares  of  the  City  Bank.  Surrogate  Brad- 
ford, in  a  learned  opinion,  held  that  the  word  "mechanics"  must  be  re- 
jected as  inapplicable  to  any  property  ever  owned  by  the  testatrix,  and 
the  rejection  of  this  word  left  the  bequest  to  operate  upon  any  bank 
stock  possessed  by  her,  and  so  to  pass  the  City  Bank  shares.  See,  also, 
a  learned  note  of  Chief  Justice  Redfield,  10  Am.  Law  Reg.  (N.  S.)  93, 
to  the  case  of  Kurtz  v.  Hibner,  55  111.  514,  8  Am.  Rep.  665,  in  which 
he  strongly  disapproves  the  decision  in  that  case. 

Chief  Justice  Marshall  in  Finlay  v.  King's  Lessee,  3  Pet.  377  (7  L. 
Ed.  701),  lays  down  the  general  rule  that  underlies  all  others.  "The 
intent  of  the  testator,"  says  he,  "is  the  cardinal  rule  in  the  construction 
of  wills,  and  if  that  intent  can  be  clearly  perceived,  and  is  not  con- 
trary to  some  positive  rule  of  law,  it  must  prevail,  although  in  giving 
effect  to  it  some  words  should  be  rejected  or  so  restrained  in  their  ap- 
plication as  materially  to  change  the  literal  meaning  of  the  particular 
sentence." 


76  LAST   WILLS  AND   TESTAMENTS.  (Part   1 

But  it  is  not  our  intention  to  review  or  classify  the  decisions.  They 
are  legion.  The  intrinsic  difficulty  of  stating  the  rule  as  applicable 
to  all  cases  is  such  as  to  make  it  presumptuous  in  any  one  to  attempt 
to  chain  it  down  and  fix  it  in  the  form  of  a  verbal  definition.  Sufficient 
appears  from  the  authorities  already  quoted  to  show  that  while  no 
bill  in  equity  lies  to  reform  a  will,  because  its  author  is  dead,  and  his 
intent  can  only  be  known  from  the  language  he  has  used,  when  applied 
to  the  circumstances  by  which  he  was  surrounded,  yet  a  careful  study 
of  that  language  and  of  those  circumstances  will  generally  disclose  any 
inadvertency  or  mistake  in  the  description  of  persons  or  things,  and 
the  manner  in  which  it  should  be  corrected,  without  adding  anything  to 
•  the  testator's  language,  and  thereby  making  a  different  will  from  that 
left  by  him.  We  will  only  quote  further  an  observation  of  Chief  Jus- 
tice Thompson,  of  New  York,  in  Jackson  v.  Sill,  11  Johns.  201,  6 
Am.  Dec.  363,  which  is  very  pertinent  to  the  present  discussion.  In 
that  case  the  court  rejected  the  extrinsic  evidence  offered  to  remove  a 
supposed  latent  ambiguity  in  a  will  for  the  very  good  reason  that  it 
appeared,  on  examination,  that  no  ambiguity  existed.  But  the  Chief 
Justice  justly  said:  "It  is  undoubtedly  a  correct  rule  in  the  construc- 
tion of  wills  to  look  at  the  whole  will  for  the  purpose  of  ascertaining 
the  intention  of  the  testator  in  any  particular  part,  where  such  part 
is  ambiguous.  But  where  the  intention  is  clear  and  certain,  and  no 
repugnancy  appears  between  the  different  parts  of  the  will,  no  such 
aid  is  necessary  or  proper."  Of  course,  in  the  case  of  a  latent  ambigu- 
ity, such  repugnancy  can  only  appear  by  means  of  the  evidence  which 
discloses  the  ambiguity. 

In  view  of  the  principles  announced  m  these  authorities,  the  case  un- 
der consideration  does  not  require  any  enlargement  of  the  rule  ordi- 
narily laid  down,  namely,  the  rule  which  requires  in  the  will  itself  suf- 
ficient to  identify  the  subject  of  the  gift,  after  striking  out  the  false 
description.  The  will  on  its  face,  taking  it  all  together,  with  the  clear 
implications  of  the  context,  and  without  the  misleading  words  "six" 
and  "three,"  devises  to  the  testator's  brother  Henry,  in  substance  as 
follows:    "I  bequeath  and  give  to  my  dearly-beloved  brother  Henry 

Walker,   forever,  lot  number  ,   in   square    four  hundred   and 

,  together  with  the  improvements  thereon  erected  and  appur- 
tenances thereto  belonging,  being  a  lot  which  belongs  to  me,  and  not 
specifically  devised  to  any  other  person  in  this  my  will." 

In  view  of  what  has  already  been  said  there  cannot  be  a  doubt  of  the 
identity  of  the  lot  thus  devised.  It  is  identified  by  its  ownership,  by 
its  having  improvements  on  it,  by  its  being  in  a  square  the  number  of 
which  commenced  with  four  hundred,  and  by  its  being  the  only  lot  be- 
longing to  the  testator  which  he  did  not  otherwise  dispose  of.  By 
merely  striking  out  the  words  "six"  and  "three"  from  the  description 
in  the  will  as  not  applicable  (unless  interchanged)  to  any  lot  which  the 
testator  owned ;  or,  instead  of  striking  them  out,  supposing  them  to 
.have  been  blurred  by  accident  so  as  to  be  illegible,. — the  residue  of  the 


Ch.  3)  TBSTAMBNTART   CAPACITY  AND   INTENT.  77 

description,  in  view  of  the  context,  so  exactly  applies  to  the  lot  in 
question  that  we  have  no  hesitation  in  saying  that  it  was  lawfully  de- 
vised to  Henry  Walker. 

The  judgment  is  reversed,  and  the  cause  remanded,  with  directions 
to  award  a  new  trial.*' 


In  re  MEYER'S  ESTATE. 
(High  Court  of  Justice,  Probate  Division.     [1908]  P.  353.) 

Fanny  Deborah  Meyer  and  her  sister,  Emilie  Meyer,  for  many  years 
resided  together,  keeping  a  joint  establishment. 

Some  time  before  March,  1907,  they,  not  for  the  first  time,  executed 
mutual  wills. 

On  March  4,  1907,  their  solicitor  went  to  their  house  by  request 
and  took  instructions  from  both  of  them  to  make  codicils  to  their  re- 
spective wills  in  similar  terms,  and  he  made  a  note  of  these  instruc- 
tions on  the  original  paper  whereon  he  had  taken  instructions  for  their 
wills. 

After  the  death  of  one  of  the  sisters  it  was  discovered,  on  opening 
the  envelope  containing  the  will  of  the  deceased,  that  she  had  executed 

.4  8  TBe  dissenting  opinion  of  Woods,  J.,  in  whicti  three  other  Justices  concur- 
red, is  omitted.    The  end  of  that  opinion  was  as  follows: 

"Our  conclusion  is  therefore  that,  as  the  e\idence  offered  and  rejected  was 
for  the  purpose  of  explaining  a  latent  ambiguity  when  there  was  no  ambiguity, 
either  latent  or  patent,  it  was  properly  rejected. 

"The  opinion  of  the  court  in  this  ease  allows  what  seems  to  us  to  be  an  un- 
ambiguous devise  to  be  amended  by  striking  out  a  sufficient  description  of  the 
premises  devised,  and  the  blank  tlius  made  to  be  filled  by  ingenious  conjectures 
based  on  extrinsic  evidence.  This  is  in  the  face  of  the  statute  of  frauds  in 
force  in  the  District  of  Columbia,  where  the  premises  in  controversy  are  situ- 
ate. Fifty  years  after  the  unequivocal  devise  In  question,  as  written  and  exe- 
cuted by  the  testator,  had,  as  required  by  law,  been  placed  upon  the  records 
of'the  District  for  the  information  of  subsequent  purchasers  and  incumbran- 
cers, it  is  allowed  to  be  erased,  and,  by  argument  and  inference,  a  new  one 
substituted  in  its  place.-  This  is  not  construing  the  will  of  the  testator ;  it  is 
making  a  will  for  him.  The  decision  of  the  court  subjects  the  title  of  real  es- 
tate to  all  the  chances,  the  uncertainty,  and  the  fraud  attending  the  admission 
of  parol  testimony,  in  order  to  give  effect  to  what  the  court  thinks  was  the  in- 
tention of  the  testator,  but  which  he  failed  to  express  in  the  manner  required 
by  law." 

The  cases  pro  and  contra  are  collected  in  6  L.  R.  A.  (N.  S.)  942,  note.  See, 
also,  4  Wigmore  on  Evidence.  §  2477. 

In  Collins  v.  Capps,  23.5  111.  500,  So  N.  E.  934,  126  Am.  St.  Rep.  232  (1908),  the 
court,  while  not  retracting  Kurtz  v.  Hibner,  cited  in  the  principal  case,  and  the 
cases  which  follow  Kurtz  v.  Hibner,  rejected  the  word  "west"  in  the  description 
"west  half"  of  a  quarter  section,  and  thereby  let  a  specific  devisee  take  the 
north  half  of  that  quarter  section.  In  Collins  v.  Capps  the  rule  is  stated  that 
repugnant  elements  in  a  description  may  be  rejected,  and  if  a  "sufficient  de- 
scription then  remains,  when  interpreted  in  the  light  of  surrounding  circum- 
stances, to  identify  the  land,  the  devise  will  be  given  effect,"  but  that  the  court 
has  "no  power  to  reform  a  will  or  correct  a  mistake  therein  by  inserting  or 
changing  words."  235  111.,  at  page  565,  S5  N.  E.,  at  page  936.  See,  also,  Gano 
V.  Gano,  239  111.  539,  88  N.  E.  146,  22  L..  R.  A.  (N.  S.)  450  (1909). 


78  LAST   WILLS   AND   TESTAMENTS.  (Pait   1 

the  codicil  intended  for  her  sister,  and  the  sister  had  executed  the 
codicil  intended  for  the  deceased. 

Although  two  solicitors  and  an  articled  clerk  were  present  when  the 
documents  were  executed,  no  one  appeared  to  have  noticed  the  mis- 
take. The  solicitors  who  then  acted  for  the  deceased  and  her  sister, 
and  who  had  been  their  solicitors  for  many  years,  were  not  the  solici- 
tors now  retained  and  instructing  counsel. 

The  Court  was  moved  to  grant  probate  of  the  will  and  codicil, 
omitting  from  the  latter  the  names  of  the  testatrix  and  her  sister 
wherever  mentioned  therein. 

The  surviving  sister,  who  was  the  residuary  legatee  under  the  will 
of  the  deceased,  consented  to  the  motion. 

Sir  GoRELL  Barnes,  President.  It  is  unfortunate  that  such  a  dif- 
ficulty as  this  has  arisen,  especially  having  regard  to  the  fact  that  a 
solicitor's  clerk  witnessed  the  document.  But  it  is  quite  clear  that  this 
lady,  though  her  signature  is  on  the  document,  never  meant  to  sign 
this  particular  codicil  at  all.  She  meant  to  sign  a  totally  different  docu- 
ment. It  may  be  that  this  document  contains  provisions  corresponding 
with  what  she  wished  to  sign,  because  the  two  documents  were  cross- 
codicils  by  two  sisters.  But,  as  a  matter  of  fact,  the  deceased  in  sign- 
ing her  name  to  this  codicil  never  intended  to  do  that  at  all,  but  in- 
tended to  put  her  signature  to  another  document ;  and,  unless  some  au- 
thority can  be  produced  to  me  to  shew  that  in  such  a  case  the  docu- 
ment she  did  not  intend  to  sign  is  to  be  treated  as  the  one  she  did  in- 
tend to  sign,  I  do  not  mean  to  support  it.  In  my  opinion  this  codicil 
<:annot  stand.  The  will,  of  course,  can  be  proved  in  the  ordinary  way. 
The  lady  who  takes  the  chief  benefit  under  the  will,  and  whose  in- 
terest would  be  diminished  somewhat  by  the  codicil,  might  very  well 
carry  out  her  deceased  sister's  wishes  by  allowing  the  money  which 
the  deceased  wished  to  dispose  of  by  the  codicil  to  be  paid  out  before 
taking  her  interest  under  the  will.  She  is,  I  understand,  executrix 
under  the  will ;  and,  though  she  does  not  want  the  inconvenience  of 
taking  probate,  she  can  do  so  and  appoint  somebody  to  manage  the 
matter  for  her.*^ 


In  re  KELSEY.    WOOLLEY  v.  KELSEY.    KELSEY  v.  KELSEY. 

(Supreme  Court  of  Judicature,  Chancery  Division.     [1905]  2  Ch.  405.) 

SwiNFEN  Eady,  J.**  Erroneous  recital  [of  advancement]  cases 
may  be  divided  into  two  classes. 

In  class  1  the  testator  by  apt  words  directs  a  legatee  to  bring  a  par- 
ticular sum  into  hotchpot.  He  may  recite  erroneously  that  a  partic- 
ular sum  has  been  advanced,  and  direct  the  legatee  to  bring  that  sum,. 

47  Sec  In  the  Goods  of  Hunt,  L.  R.  3  P.  &  D.  250  (1875);    Nelson  v.  Mc- 
Donald, 61   Hun,  400,  10  N.   Y.   Supp.  273  (1891). 
48  The  statement  of  facts  is  omitted. 


Ch.  3)  TESTAMENTARY   CAPACITY   AND   INTENT.  79 

or  the  sum  "hereinbefore  recited  to  have  been  advanced,"  into  hotch- 
pot, or  he  may  by  other  appropriate  language  shew  an  intention  that 
the  legatee  shall  absolutely  and  in  any  event  bring  the  sum  mentioned 
into  hotchpot — in  other  words,  that  the  legatee  shall  only  take  upon  the 
footing  of  bringing  that  particular  sum  into  account,  and  only  receiv- 
ing the  balance  payable  to  him  on  that  footing. 

In  class  2  the  testator  recites  the  debt  owing  from  the  legatee — again 
he  may  recite  it  erroneously — and  then  directs  the  debt,  "or  so  much 
thereof  as  shall  remain  unpaid"  at  the  testator's  death  or  the  time  of 
distribution,  to  be  deducted  and  brought  into  account.  In  cases  of  this 
class  the  testator  really  intends  that  there  shall  be  brought  into  ac- 
count the  debt  or  balance  thereof  which  is  actually  owing  at  the  time 
of  death  or  distribution. 

The  question  is  within  which  class  the  present  case  falls.  In  my 
judgment  the  present  case  more  nearly  resembles  In  re  Taylor's  Es- 
tate, 22  Ch.  D.  495,  500,  a  decision  of  the  Court  of  Appeal,  and  prop- 
erly falls  within  class  2,  and  Stanley  is  only  bound  to  bring  into  ac- 
count the  sum  really  owing.  The  testator  upon  the  face  of  the  will 
shows  an  intention  to  benefit  Stanley,  After  reciting  that  his  son 
Stanley  is  indebted  to  him  in  the  sum  of  £5,000,  and  that  he  is  de- 
sirous of  reducing  the  amount  in  which  Stanley  is  so  indebted  to  him 
to  £3,000,  the  testator  forgives  him  £2,000,  part  of  the  £5,000,  leav- 
ing £3,000  remaining  owing.  Now  it  appears  in  fact  that  no  £5,000 
had  been  advanced  or  was  owing  at  all,  but  that  the  only  sum  ad- 
vanced by  the  testator  to  Stanley  was  a  sum  of  £80  paid  for  an  in- 
denture of  apprenticeship  when  he  was  a  lad  of  fifteen.  It  is  sug- 
gested that  the  testator  intended  advancing  the  £5,000  to  set  up  Stan- 
ley in  business.  That  is  only  Stanley's  account,  and  the  solicitor  who 
drew  the  will  has  no  recollection  of  telling  Stanley  anything  of  the 
sort.  But  be  that  as  it  may,  my  opinion  is  that  according  to  the  true 
construction  of  this  will  the  testator  only  intended  Stanley  to  bring 
into  account  so  much,  not  exceeding  £3,000,  of  the  sum  which  he  owed 
the  testator  and  as  remained  unpaid  at  the  date  of  distribution.  In 
the  present  case  that  is  £80. 

It  was  contended  that  there  was  some  conflict  between  In  re  Aird's 
Estate,  12  Ch.  D.  291,  and  the  decision  of  the  Court  of  Appeal  in  In 
re  Taylor's  Estate,  22  Ch.  D.  495,  500,  and  that  in  the  later  case  of  In 
re  Wood,  32  Ch.  D,  517,  North,  J,,  followed  the  earlier  case  of  In  re 
Aird's  Estate.  But  In  re  Wood  was  merely  an  instance  of  class  1, 
the  legatee  being  directed  to  bring  into  hotchpot  the  sum  "hereinbe- 
fore recited  to  have  been  advanced."  If,  however,  the  cases  cannot 
stand  together,  the  decision  of  the  Court  of  Appeal  must  prevail.  The 
son  is,  therefore,  only  bound  to  bring  £80  into  account.** 

49  In  accord  as  to  class  1  are  McAlister  v.  Butterfield,  31  Ind.  25  (1SG9); 
In  re  Alexander's  Estate,  206  Pa.  47,  55  Atl.  797  (1903);  Younee  v.  Flory,  77 
Ohio  St.  71,  83  N.  E.  305  (1907);  Dodson  v.  Fulk,  147  N.  C.  530,  61  S,  E,  3S3 
(1908) ;    In  re  Lear's  Estate  (Mo.  App.)  124  S.  W,  592  (1910),     In  In  re  Alex- 


80  LAST   WILLS   AND   TESTAMENTS.  (Part  1 

In  re  SHARP. 
MADDISON  V.  GILL. 

(Supreme  Court  of  Judicature.    Court  of  Appeal.    [1908]  2  Oh.  190.) 

Appeal  from  the  decision  of  Joyce,  J.  [1908]  1  Ch.  372. 

Cozens-Hardy,  M.  R.^"  In  my  opinion  the  decision  of  Joyce,  J., 
in  this  case  was  perfectly  right.  The  testator  has  made  a  will  which 
certainly  has  the  merit  of  brevity.  He  gave,  after  certain  legacies, 
his  residuary  estate  upon  trust  for  John  Gill,  Edgar  Gill,  the  three 
children  of  Sarah  Mitchell,  and  here  I  read  in  the  words  of  the  codi- 
cil, "and  the  six  children  now  living  of  Samuel  Frederick  Okey  by  his 
first  wife  in  equal  shares  as  tenants  in  common." 

The  facts  are  that  there  were  at  one  time  six  children  of  Samuel 
Frederick  Okey  by  his  first  wife,  but  at  the  date  of  the  will,  and  of  the 
death,  only  one  of  those  six  was  living,  and  the  question  is  whether 
the  residue  is  divisible  between  John  Gill,  Edgar  Gill,  the  children  of 
Sarah,  and  this  one  child  of  Samuel  Frederick  Okey,  or,  in  other  words, 
whether  it  is  divisible  in  sixths  or  whether  it  is  divisible  in  elevenths. 
In  my  opinion  it  is  divisible  in  sixths. 

One  view  v/hich  may  be  taken — and  I  am  not  sure  that  it  is  not 
enough  to  dispose  of  the  whole  case — is  that,  reading  the  codicil  into 
the  will,  it  is  a  gift  to  John  Gill  and  Edgar  Gill,  the  three  children  of 
Sarah  Mitchell,  and  such  of  the  six  children  as  are  now  living  of  Sam- 
uel Frederick  Okey  by  his  first  wife.  Of  course,  if  that  be  the  true 
construction,  all  .difficulty  is  got  over.  I  am  disposed  to  think  that  is 
the  true  construction.  If,  however,  that  is  not  the  true  construction, 
then  it  seems  to  me  that  by  a  long  series  of  authorities,  which  are  ab- 
solutely binding  upon  this  court,  it  is  a  plain  case  where  you  have 
a  governing  intention  to  benefit  children^ — not,  I  agree,  forming  a  class 
in  the  sense  in  which  that  word  is  frequently  used  in  legal  language, 
but  children  described  as  being  the  children  of  a  certain  person — 
coupled  with  a  mistake  in  the  number  of  those  children;  and  under 
those  circumstances  the  courts  have  held,  and  as  it  seems  to  me  in 
accordance  with  common  sense,  that  the  dominant  intention  to  benefit 
the  members  so  described  must  have  effect  given  to  it  by  rejecting  the 
inaccurate  enumeration.  Applying  that  rule,  I  find  that  the  dominant 
intention  was  to  benefit  the  children  of  Samuel  Frederick  Okey  by  his 
first  wife.     There  was  a  mistake  in  the  number  then  living,  and  you 

ander's  Estate,  supra,  the  testator  charged  as  an  advancement  against  two 
sons  what  was  due  from  one  only,  but  what  it  seemed  he  was  not  irrational 
in  thinking  it  fair  to  charge  against  both,  and  the  court  sustained  the  charge. 
Comparv*  In  re  Bresler's  Estate,  155  Mich.  5G7,  119  N.  W.  1104  (1909),  where 
an  advancement  to  the  husband  of  testator's  daughter  was  charged  against  thfr 
daughter  as  money  she  was  "owing." 

r.o  Thft  statement  of  facts  is  omitted,  as  are  the  opinions  of  Buckley,  L.  J.^ 
and  Ke>v"Qedy,  L.  J. 


Ch.  3)  TESTAMENTARY   CAPACITY   AND   INTENT.  SI 

must  treat  it  simply  as  a  gift  to  the  children  or  child  living  at  the  date 
of  the  will,  and  at  the  date  of  the  death. 

Now  the  authorities  really  seem  to  me  to  govern  this  case.  I  take 
one  of  the  earliest  cases — I  think  it  is  the  case  of  Sleech  v.  Thorington, 
2  Ves.  Sr.  560.  There  a  capital  sum  was  given  to  "the  two  servants 
that  shall  live  with  me  at  the  time  of  my  death"  in  equal  shares.  The 
testatrix  had  three  servants,  and  it  was  held  that  the  legacy  wa? 
divisible  in  equal  thirds.  In  that  case  it  is  quite  true  that  no  extra 
burden  was  thrown  upon  the  residuary  legatee,  and  it  is  also  quite 
true  that  in  the  absence  of  extrinsic  evidence,  which  scarcely  could 
have  been  admissible  in  a  case  like  that,  the  whole  legacy  might  have 
been  void  for  uncertainty  but  for  the  application  of  this  rule.  But  Sii 
Thomas  Clarke  there  held,  following  a  prior  decision  of,  I  think,  Lord 
Hardwicke,  that  when  you  found  that  the  dominant  idea  was  "servants 
living  with  me  at  the  date  of  my  death,"  you  disregard  the  numbei 
two  and  you  take  the  number  three.  A  problem  was  put  to  Mr.  Up- 
john in  the  course  of  the  argument:  What  would  have  been  the  re- 
sult there  if  the  gift  had  been  "to  my  coachman  my  footman  and  my 
two  domestic  servants  living  with  me  at  the  date  of  my  death,"  and 
supposing  there  had  been  three  instead  of  two?  I  cannot  bring  my- 
self to  doubt  that  precisely  the  same  result  must  have  followed,  and 
that  the  reasoning  of  Sir  Thomas  Clarke's  decision  in  no  way  depends 
upon  the  fact  that  the  legacy  was  given  solely  to  the  domestic  serv- 
ants living  at  the  death,  but  the  consequence  must  be  exactly  the  same 
if  they  had  been  colegatees  with  other  persons  named  as  "my  coach- 
man and  my  groom." 

I  do  not  propose  to  go  through  the  subsequent  authorities.  It  is 
scarcely  necessary  to  refer  to  Garvey  v.  Hibbert,  19  Ves.  125,  although 
that  was  a  very  strong  case  and  a  very  leading  case.  That  was  a  case 
where  a  legacy  of  i600  was  given  to  each  of  the  three  children  of  Dr. 
Duval.  Dr.  Duval  had  four,  and  it  was  held  that  the  fourth  was  en- 
titled also  to  a  legacy  of  £600,  the  result  being,  of  course,  that  £2,400 
was  taken  out  of  the  residuary  estate,  instead  of  only  £1,800.  I  am 
content  to  take  the  principle,  for  it  is  a  principle,  laid  down  by  the 
courts  in  the  last  two  centuries,  from  the  judgment  of  the  Court  of 
Appeal  in  In  re  Stephenson,  [1897]  1  Ch.  75,  which,  somewhat  singu- 
larly, Mr.  Upjohn  seems  to  regard  as  an  authority  in  his  favor.  I 
do  not  know  where  I  could  find  more  accurately  or  more  aptly  stated 
the  nature  and  the  limitation  of  the  rule.  I  take  first  of  all  the  passage 
from  the  judgment  of  Lord  Russell  of  Killowen,  [1897]  1  Ch.  81: 
"The  proposition  must  be  limited  to  this :  That,  where  the  court,  as  a 
matter  of  construction,  arrives  at  the  conclusion  that  a  particular  class 
of  persons" — again  not  using  the  word  "class"  in  a  technical  sense, 
but  a  particular  description  of  persons — "is  to  be  benefited  according 
to  the  intention  of  the  testator,  if  there  has  been  an  inaccurate  enumera- 
tion of  the  persons  composing  that  class,  the  court  will  reject  the 

CtoST.WlLLS— 6 


82  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

enumeration;"  and  Lindley,  L.  J.,  in  the  same  case,  [1897]  1  Ch.  83, 
says:  "If  the  court  comes  to  the  conclusion,  from  a  study  of  the  will, 
that  the  testator's  real  intention  was  to  benefit  the  whole  of  a  class, 
the  court  should  not  and  will  not  defeat  that  intention  because  the 
testator  has  made  a  mistake  in  the  number  he  has  attributed  to  that 
class.  The  court  rejects  an  inaccurate  enumeration."  That  is  what 
the  learned  judge  has  done  in  the  present  case;  that  is  what,  if  it  be 
necessary  to  consider  the  cases  at  all  on  this  will,  I  propose  to  do  here. 
I  think  for  the  reasons  I  have  given  the  decision  of  the  learned  judge 
was  perfectly  right,  and  that  the  residue  is  not  divisible  in  elevenths, 
but  is  divisible  in  sixths. 


Ch.  4)  DISTINGUISHED    FROM   OTHER    DISPOSITIONS.  83 


CHAPTER  IV 

WILLS  AND  TESTAMENTS  DISTINGUISHED  FROM  CER- 
TAIN OTHER  DISPOSITIONS  OF  PROPERTY 


SECTION  1.— FROM  DEEDS 


SHARP  V.  HALL. 

(Supreme  Court  of  Alabama,  1889.     86  Ala.   110,  5  South.  497,  11  Am.   St 

Eep.  28.) 

This  was  a  proceeding  to  probate  the  will  of  Ann  E.  Hornsby,  de- 
ceased. The  instrument  was  signed  by  Mrs.  Hornsby,  under  seal, 
was  attested  by  J.  J.  Davis  as  a  subscribing  witness,  and  also  by  T.  T. 
Kirk  on  an  acknowledgment  of  her  signature  made  in  his  presence 
on  the  23d  of  February,  1886,  and  was  in  the  following  words: 

"The  State  of  Alabama,  Colbert  County.  These  presents  show  that, 
in  consideration  of  the  love  and  affection  I  have  to  Julia  M.  Hall,  I 
do  here  now  give  and  deliver  to  her  the  following  property,  to  wit. 
a  certain  lot,  or  part  of  lot,  situated  in  the  city  of  Tuscambia,  known 
as  part  of  lot  No.  317,  according  to  the  plat  of  said  city,"  describing 
it  by  metes  and  bounds,  "together  with  all  the  tenements  and  heredita 
ments  thereunto  appertaining,  all  of  which  I  now  hold  and  possess. 
But  I  do  hereby  reserve  the  use,  control  and  consumption  of  the  same 
to  myself,  for  and  during  my  natural  life;  and  this  is  done,  in  part, 
to  do  away  with  all  need  or  necessity  of  taking  out  letters  of  admin- 
istration after  my  death.     Test  my  hand  and  seal,  this  day 

of  February,  1886." 

The  defendants  requested  the  following  charge  in  writing,  and  ex- 
cepted to  the  court's  refusal  to  give  the  same:  "(6)  The  fact,  if  it  be 
a  fact,  that  Mrs.  Hornsby  did  not  dispose  of  all  the  property,  must  be 
considered  with  the  other  evidence  by  the  jury  to  ascertain  whether 
or  not  the  instrument  was  intended  to  be  a  will."  The  other  material 
facts  appear  in  the  opinion.  There  was  a  trial  by  jury,  and  a  verdict 
for  the  proponent,  followed  by  a  judgment  admitting  the  will  to  pro- 
bate, and  the  contestants  appeal. 

Stone,  C.  J.^  There  are  few,  if  any,  questions  less  clearly  defined 
in  the  law  books  than  an  intelligible,  uniform  test  by  which  to  deter- 
mine when  a  given  paper  is  a  deed,  and  when  it  is  a  will.    Deeds,  once 

1  The  statement  of  facts  is  abbreviated,  and  part  only  of  the  opinion  Is 
given. 


S4  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

executed,  are  irrevocable,  unless  such  power  is  reserved  in  the  instru- 
ment. Wills  are  always  revocable  so  long  as  the  testator  lives  and  re- 
tains testamentary  capacity.  Deeds  take  effect  by  delivery,  and  are 
operative  and  binding  during  the  life  of  the  grantor.  Wills  are  ambu- 
latory during  the  life  of  the  testator,  and  have  no  effect  until  his  death. 
Out  of  this  has  grown  one  of  the  tests  of  testamentary  purpose, 
namely,  that  its  operation  shall  be  posthumous.  If  this  distinction  were 
carried  into  uniform,  complete  effect,  and  if  it  were  invariably  ruled 
that  instruments  which  confer  no  actual  use,  possession,  enjoyment,  or 
usufruct  on  the  donee  or  grantee  during  the  life  of  the  maker  are  al- 
ways wills,  and  never  deeds,  this  would  seem  to  be  a  simple  rule,  and 
easy  of  application.  The  corollary  would  also  appear  to  result  nat- 
urally and  necessarily  that  if  the  instrument,  during  the  Ufe-time  of  the 
maker,  secured  to  the  grantee  any  actual  use,  possession,  enjoyment, 
or  usufruct  of  the  property,  this  would  stamp  it  irrefutably  as  a  deed. 
The  authorities,  however,  will  not  permit  us  to  declare  such  inflexible 
rule.  A  declaration  of  trust  by  which  the  grantor  stipulates  to  hold 
in  trust  for  himself  during  life,  with  remainder  to  a  donee,  or  succes- 
sion of  donees,  certainly  secures  no  use,  enjoyment,  or  ysufruct  to  the 
remainder-man  during  the  grantor's  life.  Yet  it  is  a  deed,  and  not 
a  will.  1  Bigelow,  Jarm.  Wills,  17,  and  notes;  Gillham  v.  Mustin,  42 
Ala.  365.  Can  a  tangible  distinction  be  drawn  between  such  case  and 
a  direct  conveyance,  in  form  a  deed,  by  which  A.  conveys  to  B.,  to 
take  effect  at  the  death  of  A.?  The  human  mind  is  not  content  with 
a  distinction  that  rests  on  no  substantial  difference.  |r  -Conveyances  re- 
serving a  life-estate  to  the  grantor  have  been  upheld  as  deeds.  2  Devi. 
Deeds,  §  983 ;  Robinson  v.  Schly,  6  Ga.  515 ;  Elmore  v.  Alustin,  28 
Ala.  309;   Hall  v.  Burkham,  59  Ala.  349.    In  Daniel  v.  Hill,  52  Ala. 

I  430,  436,  this  court  said :   "A  deed  may  be  so  framed  that  the  grantor 
sA  reserves  to  himself  the  use  and  possession  during  his  life,  and  on  his 

j|  death  creates  a  remainder  in  fee  in  a  stranger." 

r  Almost  every  conceivable  form  of  conveyance,  obligation,  or  writing, 
by  which  men  attempt  to  convey,  bind,  or  declare  the  legal  status  of 
property,  have,  even  in  courts  of  the  highest  character,  been  adjudged 
to  be  wills.  The  form  of  the  instrument  stands  for  but  little.^  When- 
ever the  paper  contemplates  posthumous  operation,  the  inquiry  is,  what 
was  intended?  1  Bigelow,  Jarm.  Wills,  20,  25;  Habergham  v.  Vin- 
cent, 2  Ves.  Jr.  204;  Jordan  v.  Jordan,  65  Ala.  301;  Daniel  v.  Hill, 
52  Ala.  430;  Shepherd  v.  Nabors,  6  Ala.  631;  Kinnebrew  v.  Kinne- 
brew,  35  Ala.  638.    The  intention  of  the  maker  is  the  controlling  in- 

2  "It  appears  from  the  English  authorities  prior  to  the  enactroent  of  the 
English  Wills  Act  of  1837  that  there  was  judicial  sanction  for  the  probating 
of  almost  every  kind  of  document  whereby  property  could  be  disposed  of  or 
affected,  among  which  we  may  enumerate  deeds,  contracts,  promissory  notes, 
bills  of  exchange,  letters  and  diary  entries."  Gillett,  C.  J.,  in  Heastou  v. 
Krieg,  1G7  Ind.  101,  110,  77  N.  E.  805,  807,  119  Am.  St.  Rep.  475  (ItXXJ).  On 
the  various  kinds  of  instruments  held  to  be  wills  see  89  Am.  SL  Uep.  489, 
note,  10  Ix  R,  A.  95,  note. 


Ch.   4)  DISTINGUISHED    FROM    OTHER   DISPOSITIONS.  85 

quiry,  and  that  intention  is  to  be  gathered  primarily  from  the  language 
of  the  instrument  itself.  Dunn  v.  Bank,  2  Ala.  152.  The  intention 
cannot  be  proved  by  a  witness  speaking  directly  thereto.  But  this  does 
not,  in  cases  of  inapt  phraseology, — such  as  the  present  instrument  dis- 
closes,— preclude  proof  of  instructions  given  to  the  draughtsman,  in 
reference  to  the  nature  of  the  paper  he  was  expected  to  prepare.  In 
Green  v.  Proude,  1  Mod.  117,  3  Keb.  310,  the  paper  had  striking  char- 
acteristics of  a  deed ;  but  the  court  said :  "Here  being  directions  given 
to  make  a  will,  and  a  person  sent  for  to  that  end  and  purpose,  this  is 
a  good  will."  Speaking  of  this  case,  Jarman  (1  Bigelow's  Ed.  p.  19) 
says :  "The  court  seems  to  have  been  influenced  by  the  circumstances 
that  the  person  who  prepared  it  was  instructed  to  make  a  will." 

In  Wareham  v.  Sellers,  9  Gill.  &  J.  [Md.]  98,  the  court  decided 
that  testimony  should  have  been  received  of  "conversations  of  the  de- 
ceased, made  at  the  time  of  executing  the  said  paper,  and  from  the 
other  circumstances,  that  the  said  P.  S.  made  and  executed  the  said 
paper  as  and  for  his  last  will  and  testament,  and  intended  it  as  such." 
In  this  case  the  controversy  was  whether  the  paper  was  a  deed  or  i 
will.  To  the  same  effect  is  Witherspoon  v.  Witherspoon,  2  McCorri 
(S.  C.)  520. 


So  all  the  attending  Circumstances  may  be  put  in  proof  jas  aids  in  de- 
termining whether  the  maker  intendecPEHe  paper  should  operate  as  a 
deed  or  a  will,  whenever  it  is  so  framed  as  to  postpone  actual  enjoy- 
ment under  it  until  the  death  of  the  maker.  Gillham  v.  Mustin,  43 
Ala.  365  ;  Daniel  v.  Hill,  52  Ala.  430 ;  Campbell  v.  Gilbert,  57  Ala. 
569 ;  Jordan  v  Jordan,  65  Ala.  301 ;  Rice  v.  Rice,  68  Ala.  216 ;  Lee 
V.  Shivers,  70  Ala.  288 ;  1  Bigelow,  Jarm.  Wills,  25 ;  Gage  v.  Gage, 
12  N.  H.  371 ;  Mealing  v.  Pace,  14  Ga.  596,  630 ;  Symmes  v.  Arnold, 
10  Ga.  506;   Jackson  v.  Jackson,  6  Dana  (Ky.)  257. 

Another  pertinent  inquiry:  If  a  paper  cannot  have  operation  as  a 
deed,  but  may  as  a  will,  then  in  doubtful  cases  we  should  pronounce 
it  a  will,  utres  magis  valeat.  Bigelow,  Jarm.  Wills,  21,  22,  24,  25; 
Attorney  General  v.  Jones,  3  Price,  379 ;  Gage  v.  Gage,  12  N.  H.  371 ; 
Symmes  v.  Arnold,  10  Ga.  506. 

The  instrument  sought  to  be  established  as  a  will  is  in  form  a  non- 
descript.    It  clearly  shows  on  its  face  that  the  donee  or  grantee  was 
to  have  no  actual  enjoyment  of  the  property — no  usufruct — during  the 
life  of  the  maker.     Its  language  is:    "I  do  hereby jresome-Jhe  use, 
control,  and  consumption  of  the  same- to  my-seli-iorand  during  my.nal^ 
ural  life."    We  Ixold-thatthepaper,  on  its  Jace,  falls  within  the  inde--.. 
Jerminate  class,  which,  according  to  circumstances,  may  be  pronouncetL. 
a  deed  or  a  will.     We  also  hold  that,  on  the  trial  of  the  issue,  it  was 
competent  to  prove  that  the  maker  was  without  lineal  or  other  very 
near  relatives ;  that  she  was  attached  to  the  donee,  who  was  a  member 
of  her  household ;  that  she  sent  for  the  draughtsman  of  the  paper,  and 
employed  him  to  write  her  will,  and  that,  in  pursuance  of  such  employ- 
ment, he  wrote  the  paper  in  controversy,  and  that  she  signed  it  with 


86  LAST   WILLS   AND  TESTAMENTS  (Part   1 

a  knowledge  of  its  contents,  and  had  it  attested ;  that  she  did  not  de- 
liver it,  but  had  it  placed  in  an  envelope,  and  indorsed,  "Not  to  be 
opened  till  after  my  death;"  and  that  she  carefully  preserved  it  in 
such  envelope  until  her  death.  Now,  all  these  facts  and  circumstances, 
if  proven  and  beheved,  were  competent  and  proper  for  the  considera- 
tion of  the  jury  in  determining  the  issue  of  devisavit  vel  non.  And  the 
fact,  if  believed,  that  the  paper  had  never  been  delivered,  and  there- 
fore could  not  take  effect  as  a  deed,  should  also  be  considered  in  ar- 
riving at  the  maker's  intention.    *     *    * 

The  paper  over  which  the  present  contention  arose  contains  the  fol- 
lowing clause:  "And  this  [the  execution  of  the  paper]  is  done  in  part 
to  do  away  with  all  need  or  necessity  of  taking  out  letters  of  adminis- 
tration after  my  death."  This  clause  is  a  circumstance  which  the  jury 
may  look  at  and  consider  in  determining  whether  Mrs.  Hornsby  in- 
tended that  Julia  M.  Hall  should  take  or  enjoy  any  interest  during 
the  former's  life.  It  is  not  conclusive,  but  must  be  weighed  with  the 
other  evidence.  It  would  probably  be  more  weighty  if  it  made  provi- 
sion for  Mrs.  Hornsby's  entire  estate.  Attempts— fruitless,  of  course 
— are  sometimes  made  to  dispense  with  administration,  even  in  docu- 
ments that  are  unmistakably  testamentary. 

Charge  No.  6,  asked  by  contestants,  should  have  been  given.  The 
remaining  charges  asked  by  them  were,  in  the  light  of  the  evidence, 
calculated  to  confuse  or  mislead,  and  were  rightly  refused  on  that 
account. 

We  have  now  considered  all  the  questions  we  deem  necessary.  In 
a  very  few  of  the  many  rulings  the  probate  court  erred.  Reversed 
and  remanded.^ 

8  On  deeds  as  wills,  see  89  Am.  St.  Rep.  494,  note;  1  U  R.  A.  (N.  S.)  315. 
note;  4  Prol).  Rep.  Ann..  217,  note;  10  Prob.  Rep.  Ann.  97,  note;  7  Am.  & 
Ens.  Ann.  Cas,  790,  note. 

In  Wilenou  v.  Handlon,  207  111.  104,  69  N.  E.  892  (1904),  a  deed  ^hich  Had 
been  recorded  by  the  grantor,  though  Intended  by  him  as  a  will,  was  can- 
celed and  set  aside  at  the  suit  of  the  grantor. 

"An  important  question  in  this  case  is  whether  the  deeds  can  be  held  to 
be  a  testamentary  disposition  of  the  property  described  in  them.  We  may 
premise  a  discussion  of  that  question  by  the  statement  that  the  circumstan- 
ces under  which  they  were  made,  and  attending  their  disposition  and  cus- 
tody, are  convincing  that  they  were  so  intended.  Indeed,  they  leave  no  doubt 
that'such  was  the  testator's  intention.  But  the  rule  is  that  a  testator's  in- 
tention cannot  be  given  effect  as  against  the  plain  and  unambiguous  provi- 
sion of  a  deed,  and  the  rule  is  settled  in  this  state  that  where  there  is  nothing 
in  the  instrument  to  indicate  a  testamentary  intent,  but,  on  the  contrary,  it 
is  in  terms  plainly  a  deed  conveying  a  present  interest,  extrinsic  evidence 
is  not  admissible  to  show  the  contrary.  The  subject  is  discussed  at  length  in 
the  case  of  Clay  v.  Lavton,  134  Mich.  341,  9G  N.  W.  458."  Hooker.  J.,  in  Dod- 
son  V.  Dodson,  142  Mich.  586,  105  N.  W.  1110  (1905).  See,  also.  Noble  v. 
Fickes,  230  111.  594,  82  N.  E.  950  (1907).  See  12  Am.  &  Eng.  Ann  Gas.  287. 
note;  13  L.  R.  A.  (N.  S.)  1203,  note. 


Ch.  4)  DISTINGUISHED   FKOM   OTHER   DISPOSITIONS.  87 


SECTION  2.— FROM  GIFTS  CAUSA  MORTIS 


MARSHALL  v.  BERRY. 
(Supreme  Judicial  Court  of  Massacliusetts,   18G6.     13  Allen,  43.) 

Tort  in  favor  of  the  administrator  of  the  estate  of  Abby  L.  Marshall 
for  the  conversion  of  three  United  States  bonds  and  two  United  States 
treasury  notes,  of  $100  each. 

At  the  trial  in  the  superior  court,  before  Morton,  J.,  there  was  evi- 
dence tending  to  show  that  the  intestate,  who  was  the  plaintiff's  wife, 
died  on  the  17th  of  June,  1865,  leaving  no  child;  that  she  was  the 
owner  of  the  property  mentioned  in  the  declaration,  and  while  on  her 
death-bed,  and  then  being  under  the  immediate  apprehension  of  death, 
she  directed  the  defendant  upon  her  decease  to  deliver  the  bonds  to 
her  brother  Edward  Berry  as  a  donatio  causa  mortis ;  that  at  the  same 
time  she  delivered  to  the  defendant  for  her  mother  the  treasury  notes, 
and  directed  him  upon  her  decease  to  deliver  them  to  her  mother  as 
a  donatio  causa  mortis.  Neither  the  mother  nor  the  brother  was  pres- 
ent and  there  was  no  delivery  to  either  in  the  lifetime  of  Mrs.  Mar- 
shall. She  died  soon  afterwards,  leaving  no  debts,  and  no  other  prop- 
erty except  to  the  value  of  five  hundred  and  fifty  dollars ;  and  the  de- 
fendant claimed  said  sum,  as  having  been  transferred  and  given  to 
him  by  the  intestate  before  her  death,  and  had  commenced  a  suit 
which  is  now  pending  to- recover  the  same.  Soon  after  Mrs.  Mar- 
shall's death,  and  before  the  property  had  been  delivered  as  directed 
by  her,  and  before  the  plaintiff  had  taken  out  letters  of  administra- 
tion, he  notified  the  defendant  not  to  deliver  the  bonds  and  treasury 
notes  to  the  brother  and  mother  respectively.  The  plaintiff*  was  ap- 
pointed as  administrator  on  the  5th  of  July,  1865,  and  in  the  latter 
part  of  the  same  month  demanded  the  bonds  and  notes  from  the  de- 
fendant, but  not  until  after  the  same  had  been  delivered  to  the  brother 
and  mother  in  pursuance  of  the  directions  of  the  deceased ;  and  said 
delivery  was  without  the  knowledge  of  the  plaintiff*. 

The  defendant  asked  the  court  to  instruct  the  jury  that  upon  this 
evidence  the  plaintiff  could  not  maintain  this  suit;  but  the  judge 
declined  so  to  rule,  and  instructed  the  jury  that  the  plaintiff  was  en- 
titled to  a  verdict  for  the  value  of  the  bonds  and  notes.  The  jury  re- 
turned a  verdict  accordingly,  and  the  defendant  alleged  exceptions. 

Wells,  J.*  The  evidence  tended  to  show  a  good  donatio  causa  mor- 
tis of  a  part  at  least  of  the  property  claimed  by  the  administrator.  It 
was  property  which  is  now  held  to  be  capable  of  such  disposition.  De- 
livery to  a  third  person  for  the  intended  donee,  to  be  given  to  hi^ 

*  Part  only  of  the  opinion  Is  given. 


88  LAST   WILLS   AND  TESTAMENTS.  (Fart   1 

after  the  decease  of  the  donor,  and  actual  receipt  and  acceptance  by 
the  donee  after  such  decease,  complete  the  conditions  of  such  a  gift 
and  perfect  the  title  in  the  beneficiary.  Sessions  v.  Moseley,  4  Cush, 
87 ;  1  Williams  on  Executors  (4th  Am.  Ed.)  686,  note.  It  would  seem, 
therefore,  that  the  ruling  of  the  judge  who  tried  the  case,  directing  a 
verdict  for  the  plaintiff,  must  have  been  upon  the  ground  which  has 
been  argued  by  the  plaintiff's  counsel  here,  namely,  that  a  married 
woman  is  not  authorized  under  our  statutes  to  make  such  a  disposi- 
tion of  her  separate  property.    *    *    * 

It  is  contended  that  a  gift  mortis  causa  is  a  testamentary  disposi- 
tion of  estate,  and  therefore,  if  mad6  by  a  married  woman,  would  be 
contrary  to  the  intent  of  Gen.  St.  c.  108,  §  9,  and,  if  sustained,  would 
tend  to  defeat  that  provision.  Although  it  is  of  a  testamentary  char- 
acter in  some  of  its  incidents,  and  is  said  to  have  been  deemed  by  the 
Roman  law  "of  the  nature  of  legacies ;"  1  Story  on  Eq.  §  607 ;  yet 
inasmuch  as,  by  our  law,  an  actual  delivery,  or  some  equivalent  act, 
by  the  donor,  in  his  lifetime,  is  necessary  to  its  validity,  we  think  it 
must  be  regarded  as,  in  its  essential  character,  a  gift.  The  title  passes 
by  the  delivery,  defeasible,  only  in  the  lifetime  of  the  donor,  by  revo- 
cation, either  express,  or  implied  by  his  recovery  or  some  other  act 
inconsistent  with  the  gift  and  indicating  a  purpose  to  resume  it.  The 
death  of  the  donor  perfects  the  title,  by  terminating  his  right  or  power 
of  defeasance.  This  mode  of  transmission  can  apply  only  to  certain 
specific  articles  capable  of  passing  by  delivery,  and  not  as  a  [com- 
plete?] disposition  of  the  donor's  estate.  If  it  purport  to  be  such  a 
disposition,  that  is,  if  it  assume  the  province  of  a  will,  it  is  void. 
Headley  v.  Kirby,  18  Pa,  336.^  It  is  not  subject  to  probate,  nor  to 
contribution  with  legacies  in  case  of  insufficiency  of  assets,  nor  to  any 
of  the  incidents  of  administration.  The  donor  at  his  decease  is  held 
to  be  already  devested  of  his  property  in  the  subject  of  the  gift,  so 
that  no  right  or  title  in  it  passes  to  his  personal  representatives.  The 
donee  takes  the  gift,  as  it  is  said,  not  from  the  administrator,  but 
against  him.  It  is  subject  to  debts;  but  only  in  the  same  way  as  other 
voluntary  conveyances  and  gifts  would  be.  That  the  wife  may  thereby 
evade  the  provision  of  the  statute,  which  disables  her  from  depriving 
her  husband  of  more  than  half  of  her  personal  estate  by  her  will,  with- 
out his  consent  in  writing,  may  be  equally  urged  against  any  disposi- 
tion of  it  in  her  lifetime.  This  consideration  does  not  protect  the  wife 
from  such  disposition  of  his  estate  by  the  husband.  Chase  v.  Red- 
ding, 13  Gray,  418. 

We  see  no  reason  for  guarding  the  rights  of  the  husband  more 
tenderly  than  those  of  the  wife.  In  the  case  of  Jones  v.  Brown,  34 
N.  H.  439,  the  court  seem  to  hold  a  contrary  doctrine,  both  as  to  the 
nature  of  the  gift,  and  the  power  of  the  wife  to  make  it.     But  if  the 

6  But  see  Michener  v.  Dale,  23  Pa.  59  (1854);  Meach  v.  Meach,  24  Vt.  591 
(1852);  Thomas  v.  Lewis,  89  Va.  1,  15  S.  B.  389,  37  Am.  St.  Rep.  848,  18 
L.  R,  A.  170  (1892). 


Ch.  4)  DISTINGUISHED    PROM    OTHER    DISPOSITIONS.  89 

current  of  authorities  be  interpreted  by  the  thing  decided  rather  than 
by  the  phraseolog-y  used,  it  must  result  in  the  position  before  stated, 
that  a  donatio  causa  mortis  is  not  a  testament  but  a  gift.  Nicholas  v. 
Adams,  2  Whart.  (Pa.)  17-22,  and  Dole  v.  Lincoln,  31  Me.  422,  con- 
tain strong  statements  of  this  view  of  the  subject.    *    *    * 

The  verdict  must  therefore  be  set  aside  and  a  new  trial  granted. 
Exceptions  sustained.* 

8  "A  gift  causa  mortis  resembles  a  testamentary  disposition  of  property 
in  this:  That  it  is  made  in  contemplation  of  death,  and  is  revocable  during 
the  life  of  the  donor.  It  is  not,  however,  a  testament,  but  in  its  essential 
characteristics  is,  what  its  name  indicates,  a  gift.  Actual  delivery  by  the 
donor  in  his  lifetime  is  necessary  to  its  validity,  or  if  the  nature  of  the 
property  is  such  that  it  is  not  susceptible  of  corporeal  delivery,  the  means  of 
obtaining  possession  of  it  must  be  delivered.  The  donee's  possession  must 
continue  during  the  life  of  the  donor,  for  recovery  of  possession  by  the  lat- 
ter is  a  revocation  of  the  gift.  But  in  case  of  a  legacy,  the  possession  remains 
with  the  testator  until  his  decease.  The  title  to  a  gift  causa  mortis  passes 
by  the  delivery,  defeasible  only  in  the  lifetime  of  the  donor,  and  his  death 
perfects  the  title  in  the  donee  by  terminating  the  donor's  right  or  power  of 
defeasance.  The  property  passes  from  the  donor  to  the  donee  directly,  and 
not  through  the  executor  or  administrator,  and  after  his  death  it  is  liable  to 
be  divested  only  in  favor  of  the  donor's  creditors.  In  this  respect  it  stands 
the  same  as  a  gift  inter  vivos.  It  is  defeasible  in  favor  of  creditors,  not  be- 
cause it  is  testamentary,  but  because,  as  against  creditors,  one  cannot  give 
away  his  property.  A  gift  causa  mortis  is  not  subject  to  probate,  nor  to  con- 
tribution with  legacies  in  case  the  assets  are  insufficient,  nor  to  any  of  the 
incidents  of  administration.  It  is  not  revocable  by  will  [but  see  .Jayne  v. 
Murphy,  31  111.  App.  28  (1889)],  for,  as  a  will  does  not  operate  until  the  de- 
cease of  the  testator,  and  the  donor,  at  his  decease,  Is  divested  of  his  prop- 
erty in  the  subject  of  the  gift,  no  right  or  title  in  it  passes  to  his  representa- 
tives. The  donee  takes  the  gift,  not  from  the  administrator,  but  against 
him,  and  no  act  or  assent  on  the  part  of  the  administrator  is  necessary  to 
perfect  the  title  of  the  donee.  Cutting  v.  Oilman,  41  N.  H.  147,  151 ;  Marshall 
V.  Berry,  supra  [13  Allen,  43,  46];  Doty  v.  Willson,  47  N.  Y.  580,  585;  Dole 
V.  Lincoln,  31  Me.  422;  Chase  v.  Redding,  13  Gray,  418;  Basket  v.  Hassell, 
107  U.  S.  602  [2  Sup.  Ct.  415,  27  L.  Ed.  500];  1  Wms.  Ex'rs,  686,  note  1.  A 
valid  gift  inter  vivos  may  be  made  on  similar  terms.  Worth  y.  Case,  42  N. 
Y.  362;  Dean  v.  Carruth,  108  Mass.  242;  Warren  v.  Durfee,  126  Mass.  338. 
A  gift  causa  mortis  in  some  respects  may  be  said  to  resemble  a  contract,  the 
mutual  consent  and  concurrent  will  of  both  parties  being  necessary  to  the 
validity  of  the  transfer.  2  Kent.  Com.  437,  438;  1  Pars.  Cont.  234.  Con- 
tracts are  commonly  understood  to  mean  engagements  resulting  from  negotia- 
tion. 2  Kent,  Com.  437.  And  in  Peirce  v.  Burroughs,  58  N.  H.  302,  it  was 
held  that  the  assent  of  both  parties  is  as  necessary  to  a  gift  as  to  a  con- 
tract." Smith,  J.,  in  Emery  v.  Clough,  63  N.  H.  552,  554,  555,  4  Atl.  796,  798. 
56  Am.  Rep.  543  (1885). 

"It  has  already  been  stated  that  an  essential  feature  of  the  gift  mortis 
causa  is  its  ambulatory  nature  before  consummation  by  the  donor's  death. 
Not  only  may  the  donor,  while  living,  revoke  the  gift  at  his  pleasure,  and 
give  it  to  another,  but  revocation  follows  impliedly  in  several  instances  with- 
out the  donor's  affirmative  action.  Thus,  the  recovery  of  the  donor  from  the 
illness  or  delivery  from  the  peril  which  induced  the  gift  works  its  revoca- 
tion, although  the  recovery  be  temporary  and  death  may  finally  ensue  from  the 
same  cause.  The  death  of  the  donee  occurring  before  that  of  the  donor  like- 
wise operates  a  revocation,  similar  in  effect  to  the  lapsing  of  a  bequest  by 
the  death  of  the  legatee  before  that  of  the  testator.  And  it  has  been  held 
that  the  donatio  mortis  causa  partakes  of  the  nature  of  legacies  to  the  ex- 
tent of  being  revocable  by  the  subsequent  birth  of  issuje  to  the  donor.  A 
donatio  mortis  causa  cannot  be  revoked  by  the  last  will  or  testament,  al- 
though there  be  a  different  testamentary  disposition  of  the  specific  thing 
given  mortis  causa,  because  the  will  speaks  as  of  the  moment  of  the  test?- 


90  LAST   WILLS   AND  TESTAMENTS.  (Part  1 


SECTION  3.— FROM  CONTRACTS  TO  BEQUEATH  OR  TO 

DEVISE 


ALLEN  et  at.  v.  BROMBERG  et  al. 

(Supreme  Court  of  Alabama,  1906.     147  Ala.  317,  41  South.  771.) 

Denson,  J.^  The  bill  in  this  case  was  filed  to  enjoin  the  probate 
of  a  will  in  the  probate  court  of  Mobile  county,  upon  the  allegation 
that  its  execution  was  in  violation  of  a  contract,  made  between  the 
testatrix  and  her  husband,  to  execute  similar  wills,  with  the  same  ex- 
ecutors, each  in  favor  of  the  other  for  life,  with  remainder  to  certain 
public  charities.  The  bill  avers  that  the  contract  was  performed  upon 
the  part  of  the  husband  who  died  first,  and  that  the  testatrix,  his  wife, 
accepted  the  benefits  therefrom.  It  further  avers  that  the  testatrix  in 
1902  made  a  will  in  conformity  with  her  contract  with  her  husband, 

tor's  death,  which  has  vested  the  previous  gift  irrevocably  in  the  donee.  [See 
Emery  v.  Clough,  supra ;  Bruuson  v.  Henry,  140  Ind.  455,  39  N.  E.  256  (1894). 
But  see  Jayne  v.  Murphy,  31  111.  App.  28  (1889)].  But  the  gift  of  a  legacy  to 
one  who  has  received  a  gift  mortis  causa  may  raise  the  presumption  that  the 
former  is  a  substitution  for  the  latter ;  and  the  donee  may  sometimes  be  com- 
pelled to  choose  between  th^m,  not  being  entitled  to  both.  The  gift  causa  mor- 
tis is  defeasible  by  reclamation,  or  any  act  of  the  donor  inconsistent  with  the 
gift  and  indicating  his  purpose  to  resume  possession  thereof.  Hence  the  gift 
is  revoked  by  the  demand  of  the  donor  for  a  redelivery,  although  the  donee 
refuse  to  surrender  it.  Like  gifts  inter  vivos  and  legacies,  gifts  mortis 
causa  are  subject  to  defeasance  in  favor  of  the  donor's  creditors,  because, 
as  against  them,  one  cannot  give  away  his  property."  1  Woerner's  Amer- 
ican Law  of  Administration  (2d  Ed.)  *125-*126. 

"The  condition  -which  inheres  in  the  gift  causa  mortis  is  a  subsequent  con- 
dition, that  the  subject  of  the  gift  shall  be  returned  if  the  gift  fails  by  rev- 
ocation ;  in  the  meantime  the  gift  is  executed,  the  title  has  vested,  the 
dominion  and  control  of  the  donor  has  passed  to  the  donee."  Matthews,  J., 
in  Basket  v.  Hassell,  107  U.  S.  602,  616,  2  Sup.  Ct.  415,  424,  27  L.  Ed.  500 
(1882).  See  Knight  v.  Tripp  (Cal.)  49  Pac.  838  (1897).  -But  in  Hatcher  v.  Bu- 
ford,  60  Ark.  109,  176,  177,  29  S.  W.  641,  643,  27  L.  R.  A.  507  (1895),  the  court 
says:  "We  think  the  better  doctrine  upon  the  transfer  of  the  title  to  gifts 
causa  mortis  is  that  which  accords  with  Justinian's  definition,  and  recog- 
nizes the  subject-matter  of  the  gift  as  becoming  the  property  of  the  donee 
in  the  event  of  the  donor's  death ;  i.  e.,  the  donor's  death  is  a  condition 
precedent  to  the  vesting  of  the  title  to  the  thing  given  in  the  donee." 

On  the  sufficiency  of  the  delivery  needed  to  effect  a  gift  causa  mortis,  see 
10  Prob.  Rep.  Ann.  385,  note ;  18  L.  R.  A.  170,  note.  See,  particularly,  Thomas 
V.  I^wis,  89  Va.  1,  15  S.  E.  389.  37  Am.  St.  Rep.  &48,  18  L.  R.  A.  170  (1892) ; 
Cain  V.  Moon,  [1896]  2  Q.  B.  283 :  Drew  v.  Hagerty,  81  Me.  231,  17  Atl.  63,  3 
L.  R.  A.  230,  10  Am.  St.  Rep.  255  (1889);  Davis  v.  Kuek,  93  Minn.  262,  101  N. 
W.  165  (1904).  See,  also,  Nelson  v.  Peterson,'202  Mass.  369,  88  N.  B.  916  (1909). 
There  can  be  no  gift  causa  mortis  of  real  property.  See  13  Pi-ob.  Rep.  Ann. 
560,  note.  But  it  lias  been  held  that  a  vendor  who  has  contracted  to  sell 
realty  may  make  a  good  gift  causa  mortis  of  his  interest  to  his  wife  by  de- 
livering to  her  the  contract  of  sale  and  their  joint  deed  to  be  placed  in  escrow 
Davie  v.  Davie,  47  Wash.  231,  91  Pac.  950  (1907). 

1  The  statement  of  facts  is  omitted. 


Ch.  4)  DISTINGUISHED   FROM    OTHER   DISPOSITIONS.  91 

but  in  1905  had  executed  the  will  containing  different  dispositions,  the 
probate  of  which  is  opposed.  The  persons  named  as  executors  in  the 
will  of  1905,  and  the  beneficiaries  therein,  are  made  parties^  defend- 
ant. The  injunction  prayed  for  in  the  bill  was  granted.  This  appeal 
is  from  the  refusal  to  dissolve  the  injunction  and  to  dismiss  the  bill 
for  want  of  equity. 

It  cannot  be  doubted  that  a  person  may  make  a  valid  agreement  to 
dispose  of  his  property  by  will  in  a  particular  way,  and  that  a  court 
of  equity  will  require  its  performance.  Bolman  v.  Overall,  80  Ala. 
451,  2  South.  62i,  60  Am.  Rep.  107.^  In  the  case  cited  it  is  said:  "It 
is  not  claimed,  of  course,  that  any  court  has  the  power  to  compel  a 
person  to  execute  a  last  will  and  testament  carrying  out  his  agreement 
to  bequeath  a  legacy ;  for  this  can  be  done  only  in  the  lifetime  of  the 
testator,  and  no  breach  of  the  agreement  can  be  assumed  as  long  as 
he  lives,  and  after  death  he  is  no  longer  capable  of  doing  the  thing 

8  See  Oswald  v.  Nehls,  233  111.  438,  84  N.  E.  619  (1008);  Kine  v.  Farrell, 
71  App.  Div.  219,  75  N.  Y.  Supp.  542  (1902).  So  one  may  contract  to  die 
intestate.  Tavlor  v.  Mitchell,  87  Pa.  518,  30  Am.  Rep,  383  (1878);  Jones  v. 
Abbott,  228  ifl.  34,  81  N.  E.  791,  119  Am.  St.  Rep.  412  (1907).  But  the  evi- 
dence of  the  agreement  must  be  clear.  Klussman  v.  Wessling,  238  111.  obS, 
87  N.  E.  544  (1909). 

"A  party  may  obligate  himself  to  make  his  will  in  a  particular  way,  or 
to  give  specific  property  to  a  particular  person,  so  as  to  bind  his  estate.  But 
the  courts  will  be  strict  in  looking  into  the  circumstances  of  such  agree- 
ments, and  require  full  and  satisfactory  proof  of  the  fairness  and  justness 
of  the  transaction.  Newton  v.  Newton,  46  Minn.  33  [48  N.  W.  450];  Svanburg 
V.  Fosseen,  75  Minn.  350  [78  N.  W.  4,  43  L.  R.  A.  427,  74  Am.  St.  Rep.  490]. 
The  remedy  for  the  breach  of  such  a  contract  depends  upon  the  facts  or 
each  particular  case.  If  the  contract  be  an  oral  one  to  devise  land,  and  is 
reasonably  certain  as  to  its  subject-matter  and  its  stipulations,  equity  will 
decree  specific  performance,  if  there  has  been  part  performance  of  such  a 
character  as  will  take  a  parol  agreement  to  convey  land  out  of  the  statute 
of  frauds,  upon  principles  which  courts  of  equity  recognize  and  act  upon. 
If  the  consideration  for  the  contract  be  labor  and  services,  which  may  be 
estimated  and  their  value  liquidated  in  money,  so  as  to  reasonably  make 
the  promisee  whole,  specific  performance  will  not  be  decreed.  But  where 
the  consideration  of  the  contract  is  that  the  promisee  shall  assume  a  pe- 
culiar and  domestic  relation  to  the  promisor,  and  render  to  hun  services  of 
such  a  peculiar  character  that  it  is  practically  impossible  to  estimate  their 
value  by  any  pecuniary  standard,  specific  performance  will  be  decreed. 
Svanbu/g  V.  Fosseen,  supra;  Johnson  v.  Hubbell,  10  N.  J  Eq  332,  6_6  Am. 
Dec  773  notes."  Start,  C  J.,  in  Stellmacher  v.  Bruder,  89  Mmn.  50  <,  509, 
95  N.  W.'324,  325,  99  Am.  St.  Rep.  G09  (1903).  '  ^     ^ 

The  statute  of  limitations  begins  to  run  against  a  suit  on  the  contract  at 
the  death  of  the  party  breaking  the  contract  Banks  v.  Howard,  117  Ga. 
94  97  43  S  E  438,  439  (1902).  In  that  case  it  was  stated  that:  On  the 
other 'hand,  if  the  party  who  is  to  be  benefited  by  the  will  sees  proper  to 
waive  his  rights  under  the  will  and  sue  the  estate  upon  a  quantum  meruit  for 
the  value  of  the  services  rendered  the  deceased  in  his  lifetime,  it  would 
seem  that  the  statute  of  limitations  would  begin  to  run  from  the  time  the 
service  was  rendered  and  not  from  the  date  of  the  death  of  the  intestate. 
But  contra  to  tliis  statement,  see  Appeal  of  Hull  (Conn.)  74  Atl.  925  (1910). 
On  contracts  to  devise  or  bequeath,  see  66  Am.  Dec.  783,  note ;  4  Prob.  Rep. 
Ann  542,  note;  14  L.  R.  A.  860,  note.  On  the  validity  of  oral  agreements  to 
devise  land,  see  5  Am.  &  Eng.  Ann.  Cas.  495,  note;  15  L.  R.  A.  (N.  S.)  466, 
note.  And  see  Grindling  v.  Rehyl,  149  Mich.  641,  113  N.  W.  290,  15  L.  R.  A. 
(N.  S.)  466  (1907). 


92  LAST  WILLS   AND  TESTAMENTS.  (Part  t- 

ag-reed  by  him.  But  the  theory  on  which  the  courts  proceed  is  to  con- 
strue such  agreement,  unless  void  under  the  statute  of  frauds  or  for 
other  reason,  to  bind  the  property  of  the  testator  or  intestate  so  far  as 
to  fasten  a  trust  on  it  in  favor  of  the  promisees,  and  to  enforce  such 
trust  against  the  heirs  and  personal  representatives  of  the  deceased  or 
others  holding  under  them  charged  with  notice  of  the  trust.  The  courts 
do  not  set  aside  the  will  in  such  cases,  but  the  executor,  heir,  or  devisee 
is  made  a  trustee  to  perform  the  contract." 

As  a  contract  for  the  execution  of  a  will  with  particular  provisions 
can  be  specifically  enforced  only  by  fastening  a  trust  on  the  property 
of  the  testator  in  favor  of  the  promisee  and  enforcing  such  trust 
against  the  personal  representatives  and  others  claiming  under  the  will 
violating  the  terms  of  the  contract,  it  is  necessary  that  the  will  be  first 
probated,  "for  it  cannot  be  recognized  in  any  forum  until  admitted  to 
probate."  Describes  v.  Wilmer,  69  Ala.  25,  44  Am.  Rep.  501.  Nor 
does  the  fact  that  the  agreement  embraced  the  appointment  of  the  same 
executors  in  both  wills  give  equity  to  the  bill.  As  stated,  no  breach 
of  the  agreement  in  any  of  its  parts  can  be  assumed  as  long  as  the 
testator  lives,  and  after  his  death  he  is  no  longer  capable  of  doing  the 
thing  agreed  upon.  Such  agreement  could  be  specifically  enforced  only 
by  setting  aside  the  latter  will  and  probating  the  former.  This  could 
not  be  done.  A  will  is  in  its  very  nature  ambulatory,  subject  to  revo- 
cation during  the  life  of  him  who  signed  it,  and  is  revoked  by  the  ex- 
ecution of  another  will.  Code  1896,  §  4264.  After  such  revocation  it 
can  be  revived  only  by  the  expressed  intention  of  the  testator  himself. 
Code  1896,  §  4266. 

For  the  reasons  above  given,  a  decree  will  be  here  rendered  dis- 
solving the  injunction  and  dismissing  the  bill  for  want  of  equity. 


Ch.  6)  KINDS  OV  WILLS  AND  TESTAMENTS. 

CHAPTER  V 
KINDS  OF  WILLS  AND  TESTAMENTS 


93 


SECTION  1.— A  WILL  IN  WRITING 


MYERS  V.  VANDERBELT. 

(Supreme  Court  of  Pennsylvania,  1877.    84  Pa.  510,  24  Am.  Rep.  227.) 

Mercur,  J.^  This  case  presents  the  single  question  whether  an  in- 
strument wholly  written  and  signed  with  lead  pencil  may  be  a  valid 
will. 

The  sixth  section  of  the  act  of  assembly  of  8th  April,  1833,  declares: 
"Every  will  shall  be  in  writing."  It  does  not  indicate  the  material  on 
which  it  shall  be  written,  nor  the  instrument  or  materials  with  which 
the  writing  shall  be  impressed.  In  Blackstone's  Com.  book  2,  p.  297, 
it  is  said :  "A  deed  must  be  written  or  I  presume  printed,  for  it  may 
be  in  any  character  or  any  language;  but  it  must  be  upon  paper  or 
parchment.  For  if  it  be  written  on  stone,  board,  linen,  leather,  or  the 
like,  it  is  no  deed."  This  writer  does  not  prescribe  whether  the  writ- 
ing shall  be  in  ink  or  in  pencil.  He  stops  with  declaring  the  substances 
on  which  it  shall  be  made. 

Writing  is  the  expression  of  ideas  by  visible  letters.  It  may  be  on 
paper,  wood,  stone,  or  other  material.  The  ten  commandments  were 
written  with  the  finger  of  God  on  tables  of  stone.  Exodus,  xxxi,  18. 
The  general  rule  undoubtedly  is  that,  whenever  a  statute  or  usage  re- 
quires a  writing,  it  must  be  made  on  paper  or  parchment;  but  it  is 
not  essentially  necessary  that  it  be  in  ink.  It  may  be  in  pencil.  This 
view  is  sustained  by  numerous  authorities,  as  applied  to  contracts 
generally.  Chitty  on  Cont.  91;  Jeffery  v.  Walton,  2  E.  C.  L.  R.  385; 
Gray  v.  Physic,  11  E.  C.  L.  R.  443;  Merritt  v.  Clason,  12  Johns.  (N. 
Y.)  102,  7  Am.  Dec.  286;     Clason  v.  Bailey,  14  Johns.  (N.  Y.)  490. 

The  same  rule  applies  to  promissory  notes.  Byles  on  Bills,  134; 
Story  on  Prom.  Notes,  §  11;  Gray  v.  Physic,  supra;  Closson  v. 
Stearns,  4  Vt.  11,  23  Am.  Dec.  245 ;  Partridge  v.  Davis,  20  Vt.  499 ; 
Brown  v.  Butchers'  &  Drovers'  Bank,  6  Hill   (N.  Y.)  443,  41  Am. 

Dec.  755. 

So  a  book  account  made  in  pencil  was  held  admissible  in  evidence 
as  a  book  of  original  entries.  Hill  v.  Scott,  12  Pa.  169.  In  1  Red- 
field  on  Wills,  §  17,  pi.  2,  it  is  said  "the  English  Statute  of  Frauds 

1  The  statement  of  facts  is  omitted. 


94  LAST   WILLS  AND  TESTAMENTS.  (Part  1 

expressly  required  that  a  will  of  lands  should  be  in  writing.  But  it 
has  been  held  that  a  will  written  in  pencil,  instead  of  ink,  would  be 
good,"  citing  In  re  Dyer,  1  Hag.  Ec.  219.  That  a  will  written  in  pen- 
cil may  be  valid  was  also  ruled  in  Raymes  v.  Clarkson,  1  Phil.  Ecc.  22 ; 
Dickenson  v.  Dickenson,  2  Phil.  Ecc.  173. 

In  Main  et  al.  v.  Ryder,  84  Pa.  217,  speaking  of  the  signature  of  a 
testator,  it  was  said  the  manifest  object  of  the  act  is  to  permit  a  will 
to  be  signed  as  any  other  written  instrument  may  be  signed.  So  we 
think  the  authorities  establish  that  a  valid  will  may  be  drawn  with  the 
same  materials  that  will  suffice  for  the  drawing  of  any  written  con- 
tract. As  was  well  said  by  Mr.  Justice  Coulter  in  Hill  v.  Scott,  supra, 
they  abundantly  prove  that  a  writing  in  pencil  is  equivalent  and  tanta- 
mount to  a  writing  in  ink. 

The  validity  of  a  will  written  or  signed  with  a  lead  pencil  was  re- 
ferred to,  but  left  undecided,  in  Patterson  v.  English,  71  Pa.  459 ;  but 
the  opinion  by  Mr.  Justice  Williams  contains  a  strong  declaration 
against  the  propriety  of  writing  or  signing  in  that  manner.  The  rea- 
son given  against  it  is  the  facility  with  which  the  writing  may  be  al- 
tered or  effaced.  There  is  force  in  this  suggestion.  No  prudent  scrive- 
ner will  write  a  will  in  pencil,  unless  under  extreme  circumstances. 
Whenever  written,  any  appearance  of  alteration  should  be  carefully 
scrutinized.  Yet  inasmuch  as  the  statute  is  silent  on  the  question,  we 
cannot  say  the  mere  fact  that  it  is  written  or  signed  in  pencil,  thereby 
makes  it  invalid.  Jt  is  nevertheless  a  writing,  known  and  acknowl- 
edged as  such  by  the  authorities,  and  fulfils  the  requirement  of  the 
statute.    Judgment  affirmed.^ 


SECTION  2.— HOLOGRAPHIC   (OR  OLOGRAPHIC)   WILLS 


MILAM  V.  STANLEY. 

(Court  of  Appeals  of  Kentucky,  1908.     Ill  S.  W.  296,  33  Ky.  Law  Rep.  7S3, 

17  L.  R.  A.  [N.  S.]  1126.) 

PIoBSON,  J.  W.  R.  Fletcher  was  convicted  in  the  Logan  circuit 
court  of  rape,  and  sentenced  to  be  hung.  He  appealed  to  this  court, 
where  the  judgment  was  affirmed.  He  applied  to  the  Governor  for 
clemency,  and  his  application  was  denied.     The  date  of  his  execution 

2  See  Tomliuson's  Estate,  133  Pa.  245,  19  AU.  482,  19  Am.  St  Rep.  637 
(189<J).  That  a  will  may  not  be  written  with  slate  pencil  on  a  slate  was 
held  in  Reed  v.  Woodward,  11  Phila.  5-il  (1875).  That  a  will  partly  in  hand- 
writing and  partly  in  printed  form  may  be  a  will  in  writing,  see  Sears  v. 
Sears,  77  Ohio  St  KM,  82  N.  E.  1067,  17  L.  R.  A.  (N.  S.)  353  (1907).  Com- 
pare Henshaw  v.  Foster,  9  Pick.  (Mass.)  312  (1S30). 

"The  proposition  that  writing  in  pencil  is  presumptive  of  deliberation,  and 
QO  intent  of  finality,  is  so  foreclosed  by  authority  that  but  brief  referonce  to 


Ch.  5)  KINDS  OF  WILLS   AND  TESTAMENTS.  95 

was  fixed  for  February  15,  1907.    On  February  12,  1907,  he  wrote  the 
following  letter : 

"My  Dear  Loving  Daughters:  I  guess  my  last  hope  is  gone.  I 
don't  want  you  all  to  grieve  after  me  for  I  think  I  will  be  better  off 
than  to  be  in  jail,  for  I  think  I  am  prepared  to  go  and  I  want  to  ask 
one  thing  of  you  all  is  to  meet  me  in  heaven  Jennie,  Lula  and  Bettie 
and  Mary,  I  want  you  to  understand  that  I  am  as  innocent  of  the 
charge  which  I  have  to  die  for  as  an  angel  in  heaven  and  it  does  me 
good  to  know  that  God  knows  that  I  am  not  guilty.  Jennie  tell  John 
to  see  that  my  body  is  taken  home  and  buried  in  our  own  graveyard 
and  get  Stinson  to  preach  my  funeral.  Tell  him  I  am  at  rest.  I  want 
to  make  you  and  Lula  a  deed  to  that  house  and  lot  and  I  don't  want 
you  and  her  to  ever  have  any  trouble  over  it.  Jennie  I  don't  do  this  be- 
cause I  think/ more  of  you  and  Lula  than  I  do  of  Mary  and  Bettie  but 
I  do  it  because  you  both  attended  to  your  dear  old  mother  so  good.  I 
hope  to  soon  meet  her  in  heaven.  Jennie  Mary  has  got  enough  of  my 
money  to  bury  me  I  guess.  So  this  is  from  your  loving  father.  W. 
R.  Fletcher. 

"To  Jennie  and  Lula  may  God  bless  you  all  is  my  prayer.  Yours, 
W.  R.  F." 

He  was  executed  on  February  15th,  and  afterwards  the  letter  was 
offered  for  probate  as  his  will.  The  appeal  before  us  is  prosecuted  from 
the  judgment  of  the  circuit  court  admitting  the  paper  to  probate.  It 
is  insisted  that  the  paper  is  not  testamentary  in  character,  that  it  only 
indicates  an  intention  to  make  Jennie  and  Lula  a  deed  to  the  house  and 
lot,  and  that  the  deceased,  having  died  without  executing  this  inten- 
tion by  making  a  deed,  the  paper  cannot  be  probated  as  a  will. 

In  determining  whether  the  paper  is  testamentary  or  not  the  court 
will  look,  not  only  at  the  language  of  the  instrument,  but  at  the  situ- 
ation of  the  maker  and  at  his  intention.  W.  R.  Fletcher  knew  when  he 
wrote  this  paper  that  he  was  to  die  on  February  15th.  His  last  hope 
of  life  was  gone;  and,  knowing  that  he  was  to  die  on  the  15th,  he 
wrote  this  letter  to  his  daughters.  The  letter  shows  on  its  face  that 
it  is  inartificially  written,  but  his  meaning  is  sufficiently  apparent.  He 
did  not  have  in  mind  that  he  was  thereafter  to  make  his  daughters  a 
deed  to  the  house  and  lot.  What  he  had  in  mind  was  that  he  wished 
them  to  have  the  house  and  lot,  and  not  to  have  any  trouble  over  it; 
for  he  added,  "I  don't  do  this  because  I  think  more  of  you  and  Lula 
than  I  do  of  Mary  and  Bettie,  but  I  do  it  because  you  both  attended  to 

it  is  merited  here.  'Statutes  requiring  wills  to  be  made  in  writing  are  fully 
satisfied  by  printing  from  plates  or  type,  by  typewriting,  or  by  writing  made 
with  a  lead  pencil.'  Rood  on  Wills,  g  246.  And  in  Estate  of  Tomlinsou,  133 
Pa.  245,  19  Atl.  482,  19  Am.  St.  Rep.  637,  it  is  held:  'A  will  wholly  written 
in  lead  pencil  is  as  valid  as  if  written  in  ink;  and  the  cancellation  of  lega- 
cies in  lead  pencil,  though  in  a  will  written  in  ink,  may  be  as  final  and  con- 
conclusive  as  to  the  intent  of  testator  as  if  made  in  ink.'  Such  is  the  Amer- 
ican authority.  UnderhiU  on  Wills.  §  183."  Robinson,  J.,  in  La  Rue  V.  Lee, 
63  W.  Va.  388,  392,  60  S.  E.  388,  390,  14  L.  R.  A.  (N.  S.)  968  (1908). 


96  LAST   WILLS   AND   TESTAMENTS.  (Part  1 

your  dear  old  mother  so  good."  These  words  show  that  he  had  in 
mind,  not  something  that  he  was  going  to  do,  but  something  he  was 
then  doing.  In  other  words,  they  show  that  he  intended  them  to  have 
the  house  and  lot  by  virtue  of  the  letter  he  was  then  writing,  and  not 
by  virtue  of  some  instrument  he  was  thereafter  to  write. 

A  will  may  be  in  any  form.  The  words  in  which  the  intention  of 
the  testator  is  expressed  are  immaterial,  if  it  sufficiently  appears  from 
the  instrument  that  he  was  making  a  disposition  of  his  property  testa- 
mentary in  character.  In  Clarke  v.  Ransom,  50  Cal.  595,  the  follow- 
ing note,  written  in  expectation  of  death,  was  probated  as  a  will: 
"Dear  old  Nance,  I  wish  to  give  you  my  watch,  two  shawls,  and  also 
$5,000,  your  old  friend,  E.  A.  Gordon."  In  Byers  v.  Hoppe,  61  Md. 
206,  48  Am.  Rep.  89,  the  decedent  wrote  on  the  back  of  a  business 
letter,  addressed  to  a  man  and  his  wife,  the  following,  addressed  to 
the  wife:  "After  my  death  you  are  to  have  $40,000.  This  you  are  to 
'  have  will  or  no  will.  Take  care  of  this  until  my  death."  In  Hunt  v. 
Hunt,  4  N.  H.  434,  17  Am.  Dec.  438,  the  decedent  indorsed  on  the 
back  of  a  note  these  words:  "If  I  am  not  living  at  the  time  this  note 
is  paid,  I  order  the  contents  to  be  paid  to  A.  H."  He  died  before  the 
note  was  paid.  In  Fickle  v.  Snepp,  97  Ind.  289,  49  Am.  Rep.  449, 
the  instrument  was  in  form  a  promissory  note.  In  all  these  cases  the 
papers  were  probated  as  a  will.  Indeed,  the  general  rule  is  that  an  in- 
strument is  a  will,  if  properly  executed,  whatever  its  form  may  be,  if 
the  intention  of  the  maker  to  dispose  of  his  estate  after  his  death  is 
sufficiently  manifested.  Babb  v.  Harrison,  9  Rich.  Eq.  (S.  C.)  Ill, 
70  Am.  Dec.  203. 

Under  these  principles  the  circuit  court  properly  admitted  the  paper 
to  probate  as  the  will  of  W.  R.  Fletcher.    Judgment  affirmed.* 

*  See  Arendt  v.  Arendt,  80  Ark.  204,  96  S.  W.  982  (1906).  On  letters  as 
wills,  see  15  L.  R.  A.  635,  note;    17  L.  R,  A.  (N.  S.)  1126,  note. 

In  a  West  Virginia  case,  where  under  the  state  statute  the  only  requisites 
of  a  holographic  will  were  that  it  should  be  wholly  written  by  the  testator 
and  signed  by  him  in  such  manner  as  to  make  it  manifest  that  the  name  was 
intended  as  a  signature,  and  where  consequently  it  need  not  be  dated,  let 
'  alone  witnessed,  the  court  said  of  such  a  will  written  with  a  purple  in- 
delible pencil  and  containing  erasures  and  interlineations  made  by  a  black 
graphite  pencil  in  the  testator's  handwriting:  "So  we  say  that  erasures  in 
a  holographic  will,  made  by  the  hand  of  testator  himself,  is  legal  revocation 
of  such  portions  as  are  so  erased,  since  it  is  in  the  manner  required  for  a 
will  of  that  kind  to  be  executed;  and  new  portions  written  into  such  will 
by  the  same  hand,  to  take  the  place  of  erasures,  or  new  portions  otherwise 
VNTitten  therein  by  the  same  hand,  being  thereby  executed  in  the  manner 
which  justifies  the  validity  of  a  holographic  will  originally,  so  long  as  the 
signature  of  the  testator  remains  in  such  manner  as  to  make  it  manifest 
that  it  is  intended  as  a  signature,  do  not  in  any  sense  invalidate  the  will  or 
afCect  its  finality,  since  it  is  then  a  complete  new  holographic  will,  and  needs 
no  re-execution  or  republication  before  witnesses,  because  it  did  not  originally 
demand  execution  and  publication  before  them.  To  say  that  the  whole  must 
be  rewritten  and  again  signed  by  testator  Is  simply  to  say  that- which  is 
neither  reasonable  nor  practicable.  There  was  alteration  In  the  mode  pro- 
vided by  law,  since  it  is  proved  that  such  alteration  was  made  in  the  hand- 
writing of  testator.    Sharp  v   Sharp,  2  Leigh  (Va.)  256  (1830).    We  think  that 


Ch.  5)  KINDS  OF   WILLS   AND  TESTAMENTS.  97 


SECTION  3.— NUNCUPATIVE  WILLS" 


/ 


GODFREY  V.  SMITH  et  al. 

(Supreme  Court  of  Nebraska,  1905.     73  Neb.  756,  103  N.  W.  4.50.) 

Oldham,  C.®  Charles  A.  Smith,  who,  for  about  18  years  prior  to 
his  death,  resided  in,  and  at  the  time  of  his  death  was  a  resident  of, 
Kearney  county,  Neb.,  departed  this  life  March  4,  1903,  in  the  city  of 
Minden,  leaving  as  his  sole  and  only  heirs  his  widow,  Lillie  A.  Smith, 
and  his  daughter,  Alta  Smith,  a  minor  of  the  age  of  seven  years,  and 

these  considerations  sufficiently  dispose  of  the  proposition  that  the  erasures 
and  interlineations  on  their  face  affect  this  writing  as  a  will,  or  its  finality 
as  such."  Robinson,  J.,  in  La  Rue  v.  Lee,  63  W.  Va.  388,  391,  60  S.  E.  388, 
390  (1908).     See  14  L.  R.  A.  (N.  S.)  968,  note. 

As  to  what  is  a  sufficient  signing  of  a  holographic  will,  see  Roy  v.  Roy's 
Executors.  16  Grat.  (Va.)  418,  84  Am.  Dec.  696  (1863);  Dinning  v.  Dinning, 
102  Va.  467,  46  S.  E.  473  (1904). 

Under  statutes  requiring  such  a  will  to  be  dated  by  the  hand  of  the  testator, 
an  abbreviated  date  will  do,  as.  for  instance.  Nov.  20,  /97.  Matter  of  Lake- 
mever.  135  Cal.  28.  66  Pac.  961.  87  Am.  St.  Rep.  96  (1901).  Compare  Estate  of 
Sullivan.  130  Pa.  342.  18  Atl.  1120  (1889).  But  where  a  testator  used  a  letter 
head  having  the  figures  "189"  printed  on  it,  he  was  held  not  to  date  it  by  his 
hand  bv  filling  in  before  and  after  these  printed  figures,  so  that  the  whole 
read  "December  12,  1892."  Succession  of  Robertson,  49  La.  Ann.  868,  21 
South.  586,  62  Am.  St.  Rep.  672  (1897).  See,  also,  In  re  Plumel's  Estate,  re- 
ported post,  p.  215 ;  In  re  Noyes'  Estate  (Mont.)  105  Pac.  1017  (1909).  So  the 
writing  of  "April  1st"  before  a  printed  "1880"  has  been  held  not  to  be  a  dat- 
ing by  the  hand  of  the  testator.  Estate  of  Billings,  64  Cal.  427,  1  Pac.  701 
(18S4).  It  has  been  held,  however,  that  an  erroneous  date  will  not  invalidate 
such  a  will.  Estate  of  Fay,  145  Cal.  82,  78  Pac.  340,  104  Am.  St.  Rep.  17 
(1904);  Barney  v.  Hayes.  11  Mont.  99,  27  Pac.  384  (1891).  Nor  will  the  fact 
that  tlie  writing  of  the  will  is  started  and  the  will  is  dated  on  one  day,  but  it  Is 
not  finished  until  a  subsequent  day.  Clisby  v.  Clisby,  145  Cal.  407,  78  Pac. 
964.  104  Am.  St  Rep.  58  (1904). 

Where  unwitnessed  holographic  wills  are  recognized,  a  holographic  codicil 
to  an  attested  will  is  valid.  In  re  Sober,  78  Cal.  477,  21  Pac.  8  (1889).  Com- 
pare In  re  Plumel's  Estate,    post,  p.  215. 

For  discussions  of  holographic  wills,  see  104  Am.  St.  Rep.  22,  note;  11 
Prob.  Rep.  Ann.  458,  note;  1  Coffey's  Prob.  Dec.  432,  note.  As  to  the  re- 
quirement in  some  states  that  the  will  must  be  found  among  the  valuable 
papers  of  the  testator  to  be  valid,  see  5  Am.  &  Eng.  Ann.  Cas.  636.  note ;  104 
Am.  St.  Rep.  33,  note.  On  wills  in  Louisiana,  see  Remsen  on  the  Preparation 
and  Contest  of  Wills,  p.  21.    On  wills  in  Porto  Rico,  see  Id.  p.  23. 

5  See  Sections  XIX-XXIII  of  the  Statute  of  Frauds  (29  Car.  II  [1676]), 
and  section  XI  of  the  Wills  Act  (7  Wm.  IV  and  1  Vict.  c.  26  [1837]),  printed 
in  the  Appendix,    post,  pp.  758,  759,  763. 

"Nuncupative  wiUs  were  not  forbidden  by  the  Statute  of  Frauds,  but  were 
placed  under  such  restrictions  as  practically  abolished  them.  *  *  *  Such 
wills  have  been  subjected  to  peculiar  regulations  by  various  statutes.  26 
Geo.  Ill,  c.  63,  32  Geo.  Ill,  c.  34,  §  1,  11  Geo.  IV,  c.  20,  §§  48,  49,  50,  and  2  & 
8  Wm.  IV,  c.  40,  §§  14,  15,  which  are  not  affected  by  1  Vict.  p.  26.  See  sec- 
tions 11  and  12."     1  Jarman  on  Wills  (6th  Ed.)  *78,  and  note. 

•  Part  only  of  the  opinion  is  given. 
Cost.  Wills— 7 


98  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

leaving  an  estate  consisting  of  real  estate  of  the  value  of  $12,000  and 
personal  property  of  the  value  of  $1,000.  Within  six  days  after  the 
death  of  Charles  A.  Smith,  his  widow,  Lillie  A.  Smith,  had  reduced 
to  writing  a  paper  purporting  to  be  the  nuncupative  will  of  Charles 
A.  Smith.    *    *    * 

Section  4993,  Cobbey's  Ann.  St.  1903,  provides  as  follows :     . 

"No  nuncupative  will  shall  be  good,  when  the  estate  thereby  be- 
queathed shall  exceed  the  value  of  one  hundred  and  fifty  dollars,  that 
is  not  proved  by  the  oath  of  three  witnesses,  at  least,  that  were  pres- 
ent at  the  making  thereof,  nor  unless  it  be  proved  that  the  testator,  at 
the  time  of  pronouncing  the  same,  did  bid  the  persons  present,  or  some 
of  them,  to  bear  witness  that  such  was  his  will,  or  to  that  effect;  nor 
unless  such  noncupative  will  was  made  at  the  time  of  the  last  sick- 
ness of  the  deceased,  and  in  the  place  of  his  or  her  habitation  or  dwell- 
ing, or  where  he  or  she  had  been  resident  for  the  space  of  ten  days 
or  more  next  before  the  making  of  such  will,  except  when  such  person 
was  unexpectedly  taken  sick,  being  from  home,  and  died  before  he 
or  she  had  returned  to  the  place  of  his  or  her  habitation." 

It  will  be  noted  that  this  provision  of  the  statute  requires  that  the 
will  be  proved  by  the  oath  of  at  least  three  witnesses  who  were  pres- 
ent at  the  making  thereof,  and  that  it  be  proved  that  the  testator  at 
the  time  did  bid  the  persons  present,  or  some  of  them,  to  bear  witness 
that  such  was  his  will,  or  to  that  effect.  Under  this  provision  of  the 
statute  it  must  be  proved  that  the  deceased,  while  uttering  the  words 
offered  as  a  will,  had  not  only  a  present  testamentary  intention,  but 
also  an  intention  to  make  an  oral  will,  and  that  he  intended  that  the 
words  then  uttered,  and  no  others,  should  constitute  his  will.  If  he 
only  gives  instructions  for  a  will  that  he  desires  to  have  reduced  to 
writing,  but  fails  to  execute,  the  instructions  cannot  be  sustained  as  a 
nuncupative  will.  1  Underbill  on  Wills,  §  174;  In  re  Hedben's  Estate, 
20  N.  J.  Eq.  473 ;  In  re  Male's  Estate,  49  N.  J.  Eq.  266,  24  Atl.  370 ; 
Porter's  Appeal,  10  Pa.  254;  Reese  v.  Hawthorn,  10  Grat.  (Va.) 
548 ;  Ellington  v.  Dillard,  42  Ga.  361. 

Now,  which  one  of  the  witnesses  to  this  will,  from  the  evidence 
above  set  out,  was  called  upon  to  bear  witness  in  the  presence  of  the 
others  that  the  words  then  spoken  were  intended  to  be  the  last  will 
and  testament  of  Charles  A.  Smith?  It  certainly  was  not  the  minor 
defendant,  Alta  Smith,  for  practically  all  she  remembered  of  the  con- 
versation was  that  her  father  intended  to  give  her  $1,000,  and  let  her 
mother  have  the  balance.  She  did  not  remember,  nor  assume  to  re- 
member, that  he  called  on  either  Mr.  Taylor  or  her  mother  to  witness 
that  any  particular  words  were  his  last  will,  or  anything  to  that  effect. 
If  the  will  offered  for  probate  is  sustained,  and  if  it  were  held  that 
real  estate  may  be  devised  by  nuncupative  will  under  our  statute,  the 
effect  of  this 'disposition  of  the  estate  of  the  decedent  would  be  to 
practically  disinherit  this  minor  defendant,  so  that  probably  she  could 
not  be  properly  held  an  incompetent  witness  because  of  interest  in  the 


Ch.  5)  KINDS  OF  WILLS   AND  TESTAMENTS.  99 

proposed  will.  But  in  view  of  the  very  tender  age  of  this  witness 
she  would  be  presumptively  incompetent  to  testify  as  either  a  subscrib- 
ing witness  or  an  attesting  witness  to  a  will  in  the  absence  of  proof 
showing  sufficient  understanding  to  comprehend  something  of  the  na- 
ture and  contents  of  the  instrument  which  she  was  called  upon  to  at- 
test, and  no  proof  of  this  kind  is  in  the  record.  Proof  of  the  rogatio 
testium  or  formal  calling  of  witnesses  to  bear  witness  is  a  necessary 
element  in  this  class  of  wills,  and,  no  matter  how  clear  the  testatory 
intent  may  be  proven,  a  paper  offered  as  such  will  be  invalid  as  a  nun- 
cupative will  without  satisfactory  proof  of  this  requisite.  Page  on 
Wills,  §  237 ;  Bundrick  v.  Haygood,  106  N.  C.  468,  11  S.  E.  423 ; 
Grossman's  Estate,  175  111.  425,  51  N.  E.  750,  67  Am.  St.  Rep.  219 ; 
Wiley's  Estate,  187  Pa.  82,  40  Atl.  980,  67  Am.  St.  Rep  569 ;  Page's 
Will,  23  Wis.  69;   Porter's  Appeal,  10  Pa.  254. 

While  it  is  true  that  in  the  proof  of  the  rogatio  testium  no  particu- 
lar form  of  words  is  required,  and  it  is  sufficient  under  the  provisions 
of  our  statute  if  the  testator,  by  words,  sign,  or  token,  indicate  to  one 
of  the  witnesses  to  bear  testimony  that  the  words  then  spoken  are  in- 
tended as  the  last  will  of  the  testator,  yet  such  word,  sign,  or  token 
must  have  been  intended  by  the  testator  as  a  request,  and  must  have 
been  understood  as  such  by  the  witnesses  present.  Weir  v.  Chidester, 
63  111.  453;  Owens'  Appeal,  37  Wis.  68;  Bradford  v.  Glower,  60  111. 
App.  55.  Now,  if  we  construe  the  words  as  spoken  to  witness  Taylor 
by  decedent,  "I  want  you  to  see  that  it  goes  that  way,"  as  a  sufficient 
request  to  bear  witness  to  his  will,  proof  of  this  request  is  only  sup- 
ported by  the  testimony  of  witness  Taylor,  who  is  disinterested,  and 
the  wife  of  decedent,  who  is  the  beneficiary  under  the  will.  While  it 
is  only  necessary  to  call  on  one  witness  to  bear  witness,  yet  it  must 
be  done  in  the  presence  of  the  other  witnesses,  and  such  fact  must  be 
proved  by  their  testimony. 

The  general  rule  is  that  a  nuncupative  will  cannot  be  established  by 
one  having  an  interest  as  legatee  in  the  will.  Beach  on  Wills  (Pony 
Series)  §  10;  Gills'  Will,  2  Dana  (Ky.)  447;  Haus  v.  Palmer,  21  Pa. 
296;  Jones  v.  Norton,  10  Tex.  120.  Nuncupative  wills,  except  those 
of  soldiers  and  sailors  in  the  active  military  or  naval  service  of  the 
government,  have  never  been  looked  upon  with  favor  by  the  courts, 
and  proof  of  such  wills  is  required  in  strict  conformity  with  the  stat- 
ute authorizing  them.  Morgan  v.  Stevens,  78  111.  287 ;  Yarnall's  Will, 
4  Rawle  (Pa.)  46,  26  Am.  Dec.  115;  Biddle  v.  Biddle,  36  Md.  630; 
Taylor's  Appeal,  47  Pa.  31;  Leachman  v.  Bonall,  1  Addams,  Eccle- 
siastical Rep.  387. 

Section  4995,  Cobbey's  Ann.  St.  1903,  provides  as  follows: 

"All  beneficial  devises,  legacies  and  gifts  whatsoever,  made  or  given 
in  any  will  to  a  subscribing  witness  thereto,  shall  be  wholly  void  un- 
less there  be  two  other  subscribing  witnesses  to  the  same ;  but  a  new 
charge  on  the  land  of  the  devisor  for  the  payment  of  debts  shall  not 
prevent  his  creditors  from  being  competent  witnesses  to  his  will." 


100  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

This  section  of  the  statute  plainly  declares  the  policy  of  preventing 
the  proof  of  wills  from  being  established  by  interested  witnesses. 
While  it  is  true  that  the  words  "subscribing  witnesses,"  used  in  this 
section,  technically  construed,  would  only  apply  to  a  witness  to  a  writ- 
ten will,  and  not  to  the  attesting  witness  of  an  oral  testament,  yet,  if 
this  narrow  construction  be  given  the  section  above  quoted,  it  de- 
stroys the  effect  of  the  use  of  the  words  "all  beneficial  devises,  legacies 
and  gifts  whatsoever  made  or  given  in  any  will,"  for  there  can  only 
be  technically  a  subscribing  witness  to  a  written  will ;  but  if  a  con- 
struction be  given  this  section  in  conformity  with  the  manifest  inten- 
tion of  the  lawmakers  we  will  treat  "subscribing  witness"  as  having 
been  used  as  synonymous  with  "attesting  witness,"  or  a  witness  by 
whose  testimony  a  will  must  be  established. 

We  are  cited  by  counsel  for  proponent  to  a  well-written  opinion  from 
the  Supreme  Court  of  Georgia  in  the  case  of  Smith  v.  Crotty,  112  Ga. 
905,  38  S.  E.  110,  in  which  it  was  held  that  under  the  statutes  of  that 
state  the  words  "subscribing  witness"  could  only  be  held  to  apply  to 
a  witness  to  a  written  will.  The  statute  construed  in  the  case  just 
cited  is  as  follows:  "If  a  subscribing  witness  is  also  a  legatee  or  a 
devisee  under  the  will,  the  witness  is  competent,  but  the  legacy  or  de- 
vise is  void."  It  will  be  noted  that  this  statute  does  not  apply  to  lega- 
cies and  devises  under  any  will,  and  it  specifically  makes  the  witness 
competent  to  testify,  but  renders  the  legacy  void.  Now,  in  the  case 
at  bar,  it  would  be  purely  paradoxical  to  hold  that  two  of  the  attest- 
ing witnesses,  who  are  the  legatees  under  the  will  and  sole  heirs  at  law 
of  the  deceased,  might  be  permitted  to  testify,  but  could  take  no  legacy 
under  the  will,  for  the  effect  of  such  a  holding  as  this  would  be  to  leave 
the  decedent  intestate,  and  to  admit  to  probate  an  alleged  will  that 
would  neither  bequeath  nor  devise  any  property  to  any  one.  We  are 
therefore  compelled  to  conclude  that  neither  of  the  legatees  named  in 
this  will  are  competent  witnesses  to  establish  the  will. 

There  is  another  question  urged  for  consideration,  and  that  is  as 
to  whether  the  proof  is  sufficient  to  establish  the  fact  that  the  will 
offered  for  probate  was  made  at  the  time  of  the  last  sickness  of  the 
deceased.  The  expression  "last  sickness"  or  "last  illness"  occurs  in 
nearly  all  American  statutes  providing  for  nuncupative  wills,  and  is 
borrowed  from  the  English  statute,  29th  Charles  the  Second,  of  which 
our  own  statute  is  a  practical  re-enactment.  The  leading  American 
case  which  construes  the  term  "last  sickness"  in  statutes  of  wills  was 
written  by  the  learned  Chancellor  Kent  in  Prince  v.  Hazleton,  20 
Johns.  (N.  Y.)  502,  11  Am.  Dec.  307,  and  it  was  there  held,  by  a 
divided  court,  however,  that  the  term  "last  sickness"  was  equivalent  to 
meaning  "in  extremis,"  or  an  illness  or  sickness  so  violent  that  the 
testator  had  not  time,  nor  opportunity,  nor  means  at  hand,  after  mak- 
ing his  oral  will,  to  make  a  written  will  in  legal  form.  This  decision 
is  generally  commended  by  the  text-writers,  and  has  been  followed  in 
Bellamy  v.  Peeler,  96  Ga.  467,  23  S.  E,  387 ;  Donald  v.  Unger,  75  Miss. 


Ch.  5)  KINDS   OF   WILLS   AND   TESTAMENTS.  101 

294,  23  South.  803;  Reese  v.  Hawthorn,  10  Grat.  (Va.)  548;  Carroll 
V.  Bonham,  42  N.  J.  Eq.  625,  9  Atl.  371;  In  re  Rutt's  Estate,  200  Pa. 
549,  50  Atl.  171 ;  O'Neill  v.  Smith,  33  Md.  569.  A  more  liberal  view, 
however,  of  the  meaning  of  this  phrase  has  found  favor  in  recent  de- 
cisions of  the  Supreme  Courts  of  Alabama,  Tennessee,  Illinois,  and 
Kansas.  Johnson  v.  Glasscock,  2  Ala.  218 ;  Nolan  v.  Gardner,  7 
Heisk.  (Tenn.)  215;  Harrington  v.  Stees,  82  111.  50,  25  Am.  Rep.  290; 
Baird  v.  Baird,  70  Kan.  564,  79  Pac.  164,  68  L.  R.  A.  627. 

Under  the  decisions  last  cited  it  is  held  that,  where  a  verbal  will  is 
made  in  the  last  sickness,  of  which  the  testator  dies,  when  such  sick- 
ness has  progressed  to  such  a  point  that  he  expects  death  at  any  time, 
and  realizes  that  he  is  liable  to  die  therefrom  at  any  time,  and  in  view 
of  such  expected  death,  and  as  preparatory  thereto,  makes  a  will  near 
to  the  time  of  his  death,  such  will  is  made  in  the  last  sickness  of  the 
testator,  although  a  sufficient  time  may  have  intervened  between  the 
making  of  the  oral  will  and  the  death  of  the  testator  to  have  permitted 
the  making  of  a  written  will.  We  are  inclined  to  think  that  this  rule 
is  all  that  a  fair  interpretation  of  the  statute  requires,  and  that  a  suffi- 
cient precaution  to  prevent  imposition  and  fraud  on  the  estates  of  de- 
cedents is  taken  by  the  courts  when  strict  proof  is  required  by  dis- 
interested witnesses  that  the  words  spoken  were  intended  as  the  last 
will  of  the  decedent,  and  that  the  witnesses  present,  or  some  of  them, 
were  called  upon  to  bear  witness  of  such  fact.  We  think  that  the  evi- 
dence was  probably  sufficient  to  sustain  the  verdict  of  the  jury  on  the 
question  that  the  will  offered  for  probate  was  made  in  the  last  sickness 
of  the  deceased. 

In  view  of  the  conclusion  to  be  reached,  it  is  not  necessary  to  deter- 
mine the  question  whether  real  estate  is  a  subject  of  devise  by  nuncu- 
pative will  under  our  statute.  The  only  question  involved  in  this  con- 
troversy at  the  present  time,  and  now  before  us  for  adjudication,  is 
whether  or  not  the  will  offered  in  the  county  court  shall  be  admitted 
to  probate  as  the  last  will  and  testament  of  the  deceased,  and  because 
of  the  interest  of  one  of  the  attesting  witnesses  and  the  incompetency 
o.f  the  other,  as  before  set  out,  there  is  not  sufficient  competent  evidence 
to  sustain  the  judgment,  and  we  therefore  recommend  that  the  judg- 
ment of  the  district  court  be  reversed,  and  the  cause  be  remanded  for 
further  proceedings. 

Ames  and  Letton,  CC,  concur. 

Per  Curiam.  For  the  reasons  stated  in  the  foregoing  opinion,  the 
judgment  of  the  district  court  is  reversed,  and  the  cause  is  remanded 
for  further  proceedings.'' 

7  See  In  re  Miller's  Estate,  47  Wash.  253,  91  Pac.  967,  125  Am.  St.  Rep. 
904,  13  L.  R.  A.  (N.  S.)  1092  (1907),  3  Am.  &  Eng.  Ann.  Cas.  317,  note.  On 
rogatlo  testium,  see  Dawson's  Appeal,  23  Wis.  69  (1868) ;  Wiley's  Estate,  187 
Pa.  82,  40  Atl.  980,  67  Am.  St.  Rep.  569  (1898).  10  Am.  &  Eng.  Ann.  Cas.  1132, 
note.  "A  nuncupative  will  is  where  the  testator,  without  any  wi-iting,  de- 
clares his  will  or  testament,  as  to  personal  estate,  before  two  witnesses. 
*     *     *     In  England  there  must  be  three  witnesses.     No  case  was  produced 


102  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

In  re  DAVIS'  WILL. 
(Supreme  Court  of  Wisconsin,  1899.     103  Wis.  455,  79  N.  W.  7G1.) 

Cassoday,  C.  J."  It  appears  from  the  record:  That  August  18, 
1896,  at  5  o'clock  a.  m.,  Russell  E.  Davis  died  at  his  home  in  Milwau- 
kee, leaving  a  nuncupative  will  spoken  a  few  hours  before,  and  during 
his  last  sickness,  and  which  was  thereupon  reduced  to  writing,  as  fol- 
lows: "I  give  unto  my  wife  the  income  of  my  entire  estate  during  her 
widowhood.  If  she  shall  remarry,  she  is  to  have  one-third  of  my  es- 
tate, and  the  other  two-thirds  is  to  go  to  my  children.  Upon  the  death 
of  my  wife,  my  whole  estate  is  then  to  go  to  my  children.  I  appoint 
my  brother  Oscar  F.  Davis  my  executor."     *     *     * 

The  only  question  for  consideration  is  whether  the  words  so  spoken, 
and  constituting  the  nuncupative  will  of  the  deceased,  were  effectual 
to  pass  the  income  of  the  real  estate  to  the  widow.  The  statute  de- 
clares, in  effect,  that  the  owner  of  "lands,"  or  of  any  interest  therein, 
"may  devise  and  dispose  of  the  same  by  last  will  and  testament  in 
writing;  and  all  such  estate  not  disposed  of  by  will  shall  descend  as  the 
estate  of  an  intestate,"  etc.  Rev.  St.  §  2277.  This  includes  the  right 
to  "devise"  the  homestead.  Id.  §  2280.  The  statute  also  declares  that 
"the  word  'land'  or  'lands,'  and  the  words  'real  estate'  and  'real  prop- 
erty' shall  be  construed  to  include  lands,  tenements  and  hereditaments 
and  all  rights  thereto  and  interests  therein."  Rev.  St.  §  4971,  subd.  9 ; 
Id.  §  2025.  The  statute  also  declares  that  every  competent  person, 
"may,  by  last  will  and  testament  in  writing,  bequeath  and  dispose  of 
all  his  or  her  personal  estate  remaining  at  his  or  her  decease,"  etc.  Id. 
§  2281.  All  wills,  except  nuncupative  wills,  must  be  in  writing,  and 
executed  as  prescribed.  Id.  §  2282.  And  the  statute  further  declares 
that  "no  nuncupative  will  shall  be  good  when  the  estate  bequeathed 

♦  •  ♦  where  it  was  held  that  a  decedent,  who  intended  to  make  a  writ- 
ten will,  whieli.  for  any  cause,  was  left  incomplete  or  unfinished,  died  tes- 
tate by  nuncupation  of  the  unfinished  will.  I  have  met  with  but  one  case, 
that  of  Offutt  V.  Offutt,  3  B.  Mon.  1G2,  38  Am.  Dec.  183,  where  it  was  ruled 
that  a  paper  not  perfected  as  a  written  will  may  be  established  as  a  nun- 
cupative will,  where  its  completion  is  prevented  by  the  act  of  God.  But  this 
depended  much  on  the  peculiarity,  or  rather  distinctive  character,  of  the 
Kentucky  statute.  ♦  *  *  There  ousht,  therefore,  to  be  present,  in  order 
to  constitute  a  nuncupative  will,  not  only  the  animus  testandi,  but  the  mind 
and  intent  to  nuncupate."  Coulter  J.,  in  Porter's  Appeal.  10  Ta.  254,  258, 
259  (1849).     See.  also,  Kennedy  v.  Douglas  (N.  C.)  6G  S.  E.  216  (1909). 

In  Re  Miller's  Estate,  supra,  it  was  held  that  upon  the  probate  of  a  nun- 
cupative will  the  court,  in  the  exercise  of  a  sound  discretion,  may  permit  the 
allejred  will  and  its  records  to  be  amended  to  conform  to  what  the  facts 
show  was  the  will  of  the  testator. 

On  nuncupative  wills,  see  11  Prob.  Rep.  Ann.  13,  note;  67  Am.  St  Rep. 
572.  note;  20  Am.  Dec.  44,  note;  2  Prob.  Rep.  Ann.  171;  5  Am.  Prob.  Rep.  391, 
note;  8  L.  R.  A.  40,  note;  9  L.  R.  A.  829.  note;  3  Am.  &  Eug.  Ann.  Cas.  317, 
note;  10  Am.  &  Eng.  Ann.  Cas.  1132,  note;  14  Am.  &  Eng.  Ann.  Caa.  1164. 
note. 

8  Part  only  of  the  opinion  is  given 


Ch.  5)  KINDS  OF  WILLS  AND  TESTAMENTS.  103 

shall  exceed  the  value  of  $150  that  is  not  proved,"  as  therein  pre- 
scribed.   Id.  §  2292. 

The  old  English  statute,  of  which  that  section  is  almost  a  literal  copy, 
used  the  words  "the  estate  thereby  bequeathed."  Act  29  Car.  II.  c.  3, 
§  19.  The  word  "bequeath"  is  commonly  used  with  reference  to  the 
disposition  of  personal  property;  and  the  word  "devise,"  with  refer- 
ence to  the  disposition  of  real  property.  Cent.  Diet. ;  And.  Law  Diet. ; 
Schouler,  Wills,  §■§  3,  513;  In  re  Fetrow's  Estate,  58  Pa.  427.  To 
hold  that  real  estate  could  be  disposed  of  by  a  nuncupative  will  would 
be  repugnant  to  other  provisions  of  the  statutes  requiring  conveyances 
of  and  contracts  relating  to  real  estate  to  be  in  writing.  Rev.  St.  §§ 
2302,  2304.  We  must  hold  that  under  our  statutes  a  nuncupative  will 
is  inoperative  to  transfer  title  to  real  estate.  This  is  in  accord  with  the 
ruHngs  of  other  courts  under  similar  statutes.  Sadler  v.  Sadler,  60 
Miss.  251;  McLeod  v.  Dell,  9  Fla.  451;  Smithdeal  v.  Smith,  64  N.  C. 
52;  Palmer  V.  Palmer,  2  Dana  (Ky.)  390;  Page  v.  Page,  2  Rob.  (Va.) 
424;  Lewis  v.  Aylott,  45  Tex.  190  ;  Pierce  v.  Pierce,  46  Ind.  86.  But 
this  does  not  prevent  such  will  from  being  effectual  as  to  the  personal 
property.    McLeod  .v.  Dell,  supra,     *     *     * 

We  must  hold  that  the  will  was  inoperative  in  so  far  as  it  attempted 
to  dispose  of  the  income  of  the  real  estate.  The  judgment  of  the  cir- 
cuit court  is  affirmed.* 


SECTION  4.— CONDITIONAL  WILLS 


In  re  GOODS  OF  SMITH. 
(Court  of  Probate,  1S60.     L.  R,  1  P.  &  D.  717.) 

Lord  Penzance.^"  The  codicil  in  question  contains  this  clause:  "I 
give  my  wife  the  option  of  adding  this  codicil  to  my  will  or  not,  as 
she  may  think  proper  or  necessary."  Now  the  proposition  is  clear 
that  the  mere  fact  that  a  part  is  in  the  form  of  a  will,  will  not  neces- 
sarily shew  that  it  is  testamentary.  There  must  have  been  in  the  exe- 
cution of  it  an  animus  testandi;  the  testator  must  have  intended  that 
the  paper  shall  operate  as  a  will.  There  have  been  cases  in  which 
persons  have  signed  and  executed  with  the  formalities  required  by  law 
papers  in  all  outward  respects  wills,  but  which,  it  has  afterwards  been 
proved  to  the  satisfaction  of  the  court,  were  executed  in  joke  or  for 
some  collateral  object.  What  the  testator  has  tried  to  do  in  this  case  is, 
he  has  endeavoured  to  leave  it  to  his  wife  to  say  whether  or  no  this 
testamentary  paper  shall  be  operative  or  not.  He  has  declared  it  to 
be  operative  or  not  according  to  a  certain  event,  namely,  his  wife's 

»  See  Mulligan  v.  Leonard,  46  Iowa,  692  (1877). 
10  The  statement  of  facts  is  omitted. 


104  LAST   WILLS   AND   TESTAMENTS.  (Part  1 

determination.  The  court  will  be  anxious  to  carry  out  his  wishes,  if  it 
be  able  to  do  so  within  the  provisions  of  the  law ;  and  the  question  is, 
whether  the  object  of  the  testator  is  illegal. 

I  think  not.  It  is  true  that  a  testator  cannot  confide  to  another  the 
right  to  make  a  will  for  him,  and  it  is  equally  true  that  he  cannot  leave 
to  another  a  power  to  revoke  his  will  after  his  death,  because  the  stat- 
ute says  that  wills  shall  be  revoked  only  in  the  manner  prescribed  by 
it,  and  if  a  will  be  destroyed  by  some  person  other  than  the  testator, 
it  must  be  destroyed  in  the  presence  of  the  testator,  and  by  his  direc- 
tion, but  there  is  nothing  in  the  statute  to  prevent  a  man  from  saying 
that  the  question  whether  a  paper  shall  be  operative  or  otherwise  shall 
depend  upon  an  event  to  happen  after  his  death.  Neither  common 
sense  nor  the  words  of  the  statute  are  opposed  to  such  a  proposition. 
In  Parsons  v.  Lanoe,  1  Ves.  Sr.  190,  Lord  Chancellor  Hardwicke  said : 
It  has  been  argued  that  although  the  dispositions  might  be  made  con- 
ditional and  contingent,  yet  it  was  impossible  to  make  the  instrum.ent 
so.  If  the  entire  disposition  is  made  so,  the  consequence  will  be  the 
same ;  but  though  it  be  truly  said  that  in  the  several  chapters  of  Swin- 
burne of  conditions,  there  is  no  instance  of  the  instrument  of  the  will 
being  made  eventual,  I  am  very  clear,  without  the  help  of  an  authority, 
that  a  will  or  codicil  may  be  entirely  depending  on  a  contingency,  so 
as  to  have  no  effect  as  an  instrument,  unless  that  event  happened,  nor 
should  it  be  proved  in  the  Ecclesiastical  Court." 

I  think  the  intention  of  the  testator  in  this  case  was  lawful,  and  as 
his  wife  has  exercised  her  option  by  refusing  to  recognize  the  second 
codicil  as  testamentary,  I  decree  probate  of  the  will  and  first  codicil 
only. 


EATON  V.  BROWN. 

(Supreme  Court  of  the  United  States,  1904.    193  U.  S.  411,  24  Sup.  Ct.  487,  48 

L.  Ed.  730.) 

Mr.  Justice  Holmes  delivered  the  opinion  of  the  court. 

The  question  in  this  case  is  whether  the  following  instrument  is  en- 
titled to  probate : 

"Washington,  D.  C.  Aug.  31"  /OOl. 

"I  am  going  on  a  Journey  and  may,  not  ever  return.  And  if  I  do 
not,  this  is  my  last  request.  The  Mortgage  on  the  King  House,  wich 
is  in  the  possession  Mr  H  H  Brown  to  go  to  the  Methodist  Church 
at  Bloomingburgh.  All  the  rest  of  my  properday  both  real  and  per- 
sonal to  My  adopted  Son  L.  B.  Eaton  of  the  life  Saving  Service, 
Treasury  Department  Washington  D.  C,  All  I  have  is  my  one  hard 
earnings  and  and  I  propose  to  leave  it  to  whome  I  please. 

"Caroline  Holley." 

The  case  was  heard  on  the  petition,  an  answer  denying  the  allega- 
tions of  the  same,  except  on  a  point  here  immaterial,  and  setting  up 


Ch.  5)  KINDS   OF   WILLS   AND   TESTAMENTS.  105 

that  the  residence  of  the  deceased  was  in  New  York,  and  upon  a  stipu- 
lation that  the  instrument  was  written  and  signed  by  the  deceased  on 
August  31,  1901,  and  that  she  went  on  her  journey,  returned  to  Wash- 
ington, resumed  her  occupation  there  as  a  clerk  in  the  Treasury  De- 
partment, and  died  there  on  December  17,  1901.  Probate  was  denied 
by  the  Supreme  Court  with  costs  against  the  appellant,  and  this  decree 
was  affirmed  by  the  Court  of  Appeals  upon  the  ground  that  the  will 
was  conditioned  upon  an  event  which  did  not  come  to  pass.  It  will  be 
noticed  that  the  domicile  of  the  testatrix  in  Washington  was  not  ad- 
mitted in  terms.  But  the  Court  of  Appeals  assumed  the  allegation  of 
the  petition  that  she  was  domiciled  in  Washington  to  be  true,  and  ob- 
viously it  must  have  been  understood  not  to  be  disputed.  The  argu- 
ment for  the  appellee  does  not  mention  the  point.  The  petition  also 
sets  up  certain  subsequent  declarations  of  the  deceased  as  amounting 
to  a  republication  of  the  will  after  the  alleged  failure  of  condition,  but 
as  these  are  denied  by  the  answer  they  do  not  come  into  consideration 
here. 

It  might  be  argued  that  logically  the  only  question  upon  the  probate 
was  the  factum  of  the  instrument.  Pohlman  v.  Untzellman,  2  Lee, 
Eccl.  319,  320.  But  the  practice  is  well  settled  to  deny  probate  if  it 
clearly  appears  from  the  contents  of  the  instrument,  coupled  with  the 
admitted  facts,  that  it  is  inoperative  in  the  event  which  has  happened. 
Parsons  v.  Lanoe,  1  Ves.  Sr.  189;  S.  C,  Ambler,  557;  1  Wils.  243; 
Sinclair  v.  Hone,  6  Ves.  607,  610;  Roberts  v.  Roberts,  2  Sw.  &  Tr. 
337;  Lindsay  v.  Lindsay,  L.  R.  2  P.  &  D.  459;  Todd's  Will,  2  W.  & 
S.  145.  The  only  question  therefore  is  whether  the  instrument  is  void 
because  of  the  return  of  the  deceased  from  her  contemplated  journey. 
As  to  this,  it  cannot  be  disputed  that  grammatically  and  literally  the 
words  "if  I  do  not"  [return]  are  the  condition  of  the  whole  "last  re- 
quest." There  is  no  doubt  either  of  the  danger  in  going  beyond  the 
literal  and  grammatical  meaning  of  the  words.  The  English  courts 
are  especially  and  wisely  careful  not  to  substitute  a  lively  imagination 
of  what  a  testatrix  would  have  said  if  her  attention  had  been  directed 
to  a  particular  point  for  what  she  has  said  in  fact.  On  the  other  hand, 
to  a  certain  extent,  not  to  be  exactly  defined,  but  depending  on  judg- 
ment and  tact,  the  primary  import  of  isolated  words  may  be  held  to  be 
modified  and  controlled  by  the  dominant  intention  to  be  gathered  from 
the  instrument  as  a  whole.  Bearing  these  opposing  considerations  in 
mind,  the  court  is  of  the  opinion  that  the  will  should  be  admitted  to 
proof. 

"Courts  do  not  incline  to  regard  a  will  as  conditional  where  it  can 
be  reasonably  held  that  the  testator  was  merely  expressing  his  induce- 
ment to  make  it,  however  inaccurate  his  use  of  language  might  be,  if 
strictly  construed."  Damon  v.  Damon,  8  Allen  (Mass.)  192,  197. 
Lord  Penzance  puts  the  same  proposition  perhaps  even  more  strongly 
in  In  the  Goods  of  Porter,  L.  R.  2  P.  &  D.  22,  23 ;  and  it  is  almost  a 
commonplace.     In  the  case  at  bar  we  have  an  illiterate  woman  writing 


106  LAST   WILLS   AND   TESTAMENTS.  (Part   1 

her  own  will.  Obviously  the  first  sentence,  "I  am  going  on  a  journey 
and  may  not  ever  return,"  expresses  the  fact  which  was  on  her  mind 
as  the  occasion  and  inducement  for  writing  it.  If  that  had  been  the 
only  reference  to  the  journey  the  sentence  would  have  had  no  further 
meaning.  Cody  v.  Conly,  27  Grat.  (Va.)  313.  But  with  that  thought 
before  her,  it  was  natural  to  an  uneducated  mind  to  express  the  gen- 
eral contingency  of  death  in  the  concrete  form  in  which  just  then  it 
was  presented  to  her  imagination.  She  was  thinking  of  the  possibility 
of  death  or  she  would  not  have  made  a  will.  But  that  possibility  at 
that  moment  took  the  specific  shape  of  not  returning  from  her  journey, 
and  so  she  wrote  "if  I  do  not  return,"  before  giving  her  last  commands. 

We  need  not  consider  whether  if  the  will  had  nothing  to  qualify 
these  words,  it  would  be  impossible  to  get  away  from  the  condition. 
But  the  two  gifts  are  both  of  a  kind  that  indicates  an  abiding  and  un- 
conditioned intent — one  to  a  church,  the  other  to  a  person  whom  she 
called  her  adopted  son.  The  unlikelihood  of  such  a  condition  being 
attached  to  such  gifts  may  be  considered.  Skipwith  v.  Cabell,  19  Grat. 
(Va.)  758,  783.  And  then  she  goes  on  to  say  that  all  that  she  has  is 
her  own  hard  earnings  and  that  she  proposes  to  leave  it  to  whom  she 
pleases.  This  last  sentence  of  self-justification  evidently  is  correlated 
to  and  imports  an  unqualified  disposition  of  property,  not  a  disposition 
having  reference  to  a  special  state  of  facts  by  which  alone  it  is  justi- 
fied and  to  which  it  is  confined.  If  her  failure  to  return  from  the 
journey  had  been  the  condition  of  her  bounty,  an  hypothesis  which  is 
to  the  last  degree  improbable  in  the  absence  of  explanation,  it  is  not 
to  be  believed  that  when  she  came  to  explain  her  will  she  would  not 
have  explained  it  with  reference  to  the  extraordinary  contingency  upon 
which  she  made  it  depend  instead  of  going  on  to  give  a  reason  which 
on  the  face  of  it  has  reference  to  an  unconditioned  gift. 

It  is  to  be  noticed  that  in  the  leading  case  cited  for  the  opposite  con- 
clusion from  that  which  we  reach.  Parsons  v.  Lanoe,  Lord  Hardwicke 
emphasizes  the  proposition  that  under  the  circumstances  of  that  case 
no  court  of  equity  would  give  any  latitude  to  support  such  a  will. 
There  the  will  began  "in  case  I  should  die  before  I  return  from  the 
journey  I  intend,  God  willing,  shortly  to  undertake  for  Ireland."  The 
testator  then  was  married  but  had  no  children.  He  afterwards  re- 
turned from  Ireland  and  had  several  children.  If  the  will  stood  the 
children  would  be  disinherited,  and  that  was  the  circumstance  which 
led  the  Lord  Chancellor  to  say  what  we  have  mentioned,  and  to  add 
that  courts  would  take  hold  of  any  words  they  could  to  make  the  will 
conditional  and  contingent.     Ambler,  561;   1  Ves.  Sr.  192. 

It  is  to  be  noticed  further  that  in  the  more  important  of  the  other 
cases  relied  on  by  the  appellees  the  language  or  circumstances  confirmed 
the  absoluteness  of  the  condition.  For  instance,  "my  wish,  desire, 
and  intention,  now  is  that  if  I  should  not  return  (which  I  will,  no  pre- 
venting Providence)."  Todd's  Will,  2  W.  &  S.  145.  There  the  lan- 
guage in  the  clearest  way  showed  the  alternative  of  returning  to  have 


Ch.    5)  KINDS   OF  WILLS   AND   TESTAMENTS.  107 

been  present  to  the  testator's  mind  when  the  condition  was  written, 
and  the  will  was  limited  further  by  the  word  "now."  Somewhat  simi- 
lar was  In  the  Goods  of  Porter,  L.  R.  2  P.  &  D.  22,  where  Lord  Pen- 
zance said,  if  we  correctly  understand  him,  that  if  the  only  words  ad- 
verse to  the  will  had  been  "should  anything-  unfortunately  happen  to  me 
while  abroad,"  he  would  not  have  held  the  will  conditional.  See  In 
the  Goods  of  Mayd,  6  P.  D.  17,  19. 

\  On  the  other  hand,  we  may  cite  the  following  cases  as  strongly  fa- 
voring the  view  which  we  adopt.  It  hardly  is  worth  while  to  state 
them  at  length,  as  each  case  must  stand  so  much  on  its  own^circum- 
stances  and  words.  The  latest  English  decisions  which  we  have  seen 
qualify  the  tendency  of  some  of  the  earlier  ones.  In  the  Goods  of 
Mayd,  6  P.  D.  17;  In  the  Goods  of  Dobson,  L.  R.  1  P.  &  D.  88;  In 
the  Goods  of  Thorne,  4  Sw.  &  Tr.  36 ;  Likefield  v.  Likefield,  82  Ky. 
589,  56  Am.  Rep.  908 ;  Bradford  v.  Bradford,  4  Ky.  Law  Rep.  947 ; 
Skipwith  v.  Cabell,  19  Grat.  (Va.)  758,  782-784;  FrenchW.  French, 
14  W.  Va.  458,  502.    Decree  reversed.^^ 


SECTION  5.— JOINT  AND  MUTUAL  WILLS 


GERBRICH  v.  FREITAG. 

(Supreme  Court  of  Illinois,  1905.    213  111.  552,  73  N.  E.  338,  104  Am.  St.  Rep. 

234.) 

Cartwright,  J.^'  An  instrument  in  writing  executed  by  Ulrich 
Von  Gans  and  Hannah  Von  Gans,  husband  and  wife,  was  offered  for 
probate  in  the  county  court  of  McLean  county  as  the  will  of  said  Han- 
nah Von  Gans,  who  died  February  15,  1903,  leaving,  surviving  her, 
her  said  husband,  Ulrich  Von  Gans,  five  children  by  her  former  hus- 

11  In  In  tbe  Estate  of  Thomas  Vines,  [1910]  P.  147,  a  will  beginning,  "If 
anything  should  happen  to  me  while  in  India,"  was  held  not  to  be  conditional. 
In  so  holding  Bigham.  P.,  said:  "It  is  perhaps  sufficient  to  say  that  the  rule 
appears  to  be  that,  where  a  will  is  made  in  terms  subject  to  the  happening 
of  an  event,  that  event  must  occur  before  It  can  become  operative;  whereas,  if 
the  possibility  of  an  event  happening  is  stated  merely  as  the  reason  for  mak- 
ing the  will,  the  will  becomes  operative,  whether  the  event  happen  or  not.  To 
give  an  illustration:  If  a  man  write,  'Should  I  die  to-morrow,  my  will  is'  so 
and  so,  his  death  must  occcur  [at  that  time]  to  make  the  document  operative ; 
whereas,  if  he  write,  'Lest  I  die  tomorrow,'  It  will  be  operative,  whether  he 
die  or  not  on  the  morrow.  But  the  question  always  depends  on  the  wording 
of  the  instrument,  and.  reading  the  instrument  before  me,  I  come  to  the  con- 
clusion that  it  is  not  conditional."     Pages  149,  150. 

On  provisional  alternative  wills,  see  Hamilton's  Estate,  74  Pa.  69  (1S73). 
On  simultaneous  wills,  see  Townsend  v.  Moore,  [1005]  P.  6C.  On  conditional 
wills,  see  8  Am.  &  Eng.  Ann.  Cas.  1150,  note;  9  Prob.  Rep.  Ann.  631,  note-  1 
Am.  Prob.  Rep.  396.  note. 

12  Tart  only  of  the  opinion  is  given. 


108  LAST  WILLS  AND  TESTAMENTS.  {Part  1 

band,  Freitag,  and  Henrietta  Ernestine  Von  Gans,  named  in  the  in- 
strument as  the  daughter  of  said  Ulrich  and  Hannah.  Appellant,  who 
is  one  of  the  children  of  the  former  marriage,  and  who  was  given  by 
the  instrument  $1,  with  the  statement  that  she  had  received  other  valu- 
able consideration  in  advance,  objected  to  the  probate  of  the  instru- 
ment as  a  will,  both  because  it  was  not  executed  according  to  law,  and 
because  it  was  not  such  an  instrument  as  could  be  probated  as  the  will 
of  Hannah  Von  Gans.  The  county  court  admitted  the  will  to  probate, 
and  appellant  appealed  to  the  circuit  court,  where  it  was  again  admit- 
ted to  probate,  and  this  is  an  appeal  from  the  order  of  the  circuit  court. 

The  objection  made  to  the  instrument  is  that  it  is  a  joint  will,  in- 
capable of  being  probated  as  the  will  of  Hannah  Von  Gans  while  the 
other  maker,  Ulrich  Von  Gans,  is  living.  Two  persons  may  at  the 
same  time  execute  separate  wills  disposing  of  their  property,  and  there 
is  no  legal  objection  to  uniting  the  wills  in  a  single  instrument  if  it  is 
such  that  it  may  take  effect  upon  the  death  of  one  of  the  parties,  so 
far  as  it  relates  to  the  property  of  that  one.  The  fact  that  husband  and 
wife  devise  their  property  reciprocally  to  each  other  by  the  same  instru- 
ment, or  that  it  is  a  joint  or  mutual  will,  does  not  deprive  it  of  validity, 
if  the  will  can  be  given  effect  on  the  death  of  either,  so  far  as  the  prop- 
erty of  that  one  is  concerned.  If  it  is  of  that  character,  it  may  be  pro- 
bated upon  the  death  of  one  as  his  or  her  separate  will,  and,  upon  the 
death  of  the  other,  can  be  again  proved  as  the  separate  will  of  the 
other.  Unless  the  provisions  of  the  instrument  are  such  that  the  dis- 
position of  the  property  is  suspended  after  the  death  of  one  until  the 
death  of  the  other,  so  that  it  cannot  be  executed  as  the  separate  will 
of  the  deceased  party,  it  is  no  objection  that  there  is  but  a  single  instru- 
ment. In  re  Davis,  120  N.  C.  9,  26  S.  E.  636,  38  L.  R.  A.  289,  58  Am. 
St.  Rep.  771;  Betts  v.  Harper,  39  Ohio  St.  639,  48  Am.  Rep.  477; 
Estate  of  Cawley,  136  Pa.  628,  20  Atl.  567,  10  L.  R.  A.  93 ;  Evans  v. 
Smith,  28  Ga.  98,  73  Am.  Dec.  751. 

In  this  case  the  instrument  was  declared  by  the  parties  to  be  their 
joint  last  will  and  testament.  Hannah  Von  Gans  was  the  owner  of 
280  acres  of  land,  and  also  of  an  undivided  one-half  of  119  acres  of 
which  she  and  her  husband,  Ulrich  Von  Gans,  were  tenants  in  com- 
mon; he  owning  the  other  undivided  one-half.  These  lands  were 
their  only  property.  The  will  provided  that  the  just  debts  and  funeral 
expenses  of  the  makers,  should  be  paid,  including  a  mortgage  for  $10,- 
000  on  the  lands,  and  directed  that  the  five  children  to  whom  the  lands 
were  devised  should  each  assume  the  sum  of  $2,000,  or  such  equalized 
portion  of  the  mortgage  as  might  remain  unpaid  at  the  time  of  their 
death.  The  lands  were  devised  to  four  of  the  children  of  Hannah 
Von  Gans,  excluding  appellant,  and  to  Henrietta  Ernestine  Von  Gans, 
in  tracts  of  SO  acres  each,  except  one  tract,  which  was  79  acres.  One 
of  the  daughters  was  to  pay  to  John  Freitag,  one  of  the  sons,  a  note 
given  to  the  testator  and  testatrix  for  cash  loaned  to  her  husband. 
The  will  contained  the  following  provision:   "Each  parcel  of  said  land 


Ch,  5)  KINDS   OF   WILLS   AND   TESTAMENTS,  109 

to  pass  into  the  possession  of  our  devisees  at  our,  one  or  the  other, 
demise,  and  each  devisee  to  pay  the  survivor  a  current  rate  of  rent  per 
acre  on  said  land  so  devised  during  his  or  her  natural  life,  together 
with  the  taxes,  interest  on  mortgage,"  etc. 

The  will  was  written  by  a  friend  of  the  parties,  who  had  been  in 
the  grocery  business,  and  who  was  unskilled  in  such  matters.  They 
had  been  in  the  habit  of  trading  with  him,  and  he  wrote  the  will  from 
deeds  furnished  by  them.  While  the  forms  of  expression  used  are 
not  the  same  as  would  have  been  employed  by  one  more  experienced 
in  writing  wills,  we  find  no  especial  difficulty  in  determining  the  intent 
of  the  parties.  By  the  will,  each  one  devised  his  or  her  own  property, 
with  the  provision  that  each  parcel  should  pass  into  the  hands  of  the 
devisees  at  the  death  of  the  owner;  but  such  devisee  was  to  pay  to  the 
survivor,  during  his  or  her  natural  life,  the  current  rate  of  rent  per 
acre,  as  well  as  the  taxes  and  interest  on  the  mortgage.  The  posses- 
sion being  subject  to  the  payment  of  the  current  rate  of  rent,  together 
with  the  taxes  and  interest  on  the  mortgage,  or  such  part  as  might  re- 
main unpaid,  the  survivor  would  be  entitled  to  the  full  beneficial  use 
of  the  land  for  his  or  her  life.  That  beneficial  use  in  the  lands  devised 
by  Hannah  Von  Gans  became  vested  in  Ulrich  Von  Gans  upon  her 
death,  and  it  would  only  come  to  an  end,  and  the  land  be  freed  from 
the  rent  charge,  upon  his  death.  There  is  nothing  in  these  provisions 
which  suspended  the  disposition  of  the  property  or  the  operation  of  the 
will  until  the  death  of  Ulrich  Von  Gans,  but  the  instrument  is,  in 
effect,  two  distinct  wills,  which  may  be  probated  separately,  and  be 
successively  proved  as  the  separate  will  of  each  maker.     *     *     * 

The  judgment  of  the  circuit  court  is  affirmed.    Judgment  affirmed.^' 


STONE  v.  HOSKINS. 
(High  Court  of  Justice,  Probate  Division.     [1905]  P.  194.) 

The  plaintiffs,  as  executors,  claimed  probate  of  a  will,  dated  Febru- 
ary 1,  1904,  of  Emily  Hoskins,  who  died  on  March  3,  1904. 

The  defendant,  who  was  the  husband  of  the  testatrix,  propounded 
an  earlier  will,  dated  November  31,  1900,  and  alleged  that,  both  before 
and  after  the  marriage,  he  and  his  wife  agreed  to  make  mutual  wills, 
and  that  this  agreement  or  arrangement  was  carried  into  effect  on 
November  21,  1900;  and  he  further  alleged  that  the  testatrix  secretly 
and  without  notice  to  him  and  contrary  to  the  said  arrangement  pur- 
ported to  revoke  her  said  will  and  to  make  a  fresh  one.  He  counter- 
claimed  that  the  Court  should  pronounce  against  the  fresh  will,  and, 
alternatively,  that  the  executors  of  the  later  will,  if  the  same  were  ad- 

13  See,  also,  Peoria  Humane  S(icietv  v.  McMurtrie,  229  111.  519,  82  N.  E.  319 
<1Q07). 


110  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

mitted  to  probate,  should  be  directed  to  hold  the  property  of  the  testa- 
trix in  trust  for  the  persons  benefited  under  the  earlier  will. 

Sir  GoRELL  Barnes,  President.^*  *  *  *  There  remains  a  legal 
point  of  considerable  interest.  These  were  no  doubt  mutual  wills 
made  in  accordance  with  an  arrangement.  The  testatrix  departed 
from  that  arrangement  and  shortly  afterwards  died,  the  husband  not 
hearing  of  that  departure  till  after  her  death ;  and  he  now  claims  that 
in  the  event,  which  happened,  of  my  pronouncing  for  the  will,  the  ex- 
ecutors of  it  should  hold  the  property  passing  under  it  on  the  trusts 
of  the  arrangement. 

The  contention  of  the  defendant  is  this — that  as  there  was  this  ar- 
rangement prior  to  the  marriage,  and  it  has  been  carried  out  by  the 
wills  of  1900,  and  he  has  not  departed  from  the  arrangement  on  his 
part,  he  ought  to  have  a  declaration  that  matters  still  stand  on  the 
basis  of  the  arrangement.  On  the  other  hand  the  point  is  made  that 
the  arrangement  contemplated  by  its  very  nature  a  power  to  revoke 
it  in  certain  circumstances,  i.  e.,  that  it  is  not  of  the  character  of  a 
settlement,  and  the  fact  that  it  was  to  be  carried  out  by  making  wills 
indicates  its  revocability.  Unless  the  deceased  died  standing  by  her 
will,  so  to  speak,  she  could  depart  from  the  arrangement  by  her  hus- 
band's consent  or  notice  given  to  him.  It  is,  I  know,  objected  here 
that  notice  was  not  given.     *     *     * 

It  appears  to  me  that  the  result  is  tolerably  plain.  If  these  two 
people  had  made  wills  which  were  standing  at  the  death  of  the  first 
to  die,  and  the  survivor  had  taken  a  benefit  by  that  death,  the  view 
is  perfectly  well  founded  that  the  survivor  cannot  depart  from  the 
arrangement  on  his  part,  because,  by  the  death  of  the  other  party,  the 
will  of  that  party  and  the  arrangement  have  become  irrevocable;^^' 
but  that  case  is  entirely  different  from  the  present,  where  the  first  per- 
son to  die  has  not  stood  by  the  bargain  and  her  "mutual"  will  has  in 
consequence  not  become  irrevocable.  The  only  object  of  notice  is  to 
enable  the  other  party  to  the  bargain  to  alter  his  or  her  will  also,  but 
the  survivor  in  the  present  case  is  not  in  any  way  prejudiced.  He  has 
notice  as  from  the  death.    I  cannot  see  that  the  cases  cited  support  the 

i*Tlie  statement  of  facts  is  abbreviated,  and  part  only  of  tlie  opinion  is 
given. 

16  "It  is  evident  from  the  provisions  of  tlie  mutual  or  joint  will  that  this 
aged  or  infirm  couple,  each  owning  property,  made  said  will  together  for  the 
purpose  of  disposing  of  and  distributing  their  property  equitably  among 
their  children  after  their  death,  that  the  provisions  of  the  will  were  recip- 
rocal, and  that  but  for  these  mutual  bequests  the  parties  would  in  all  prob- 
ability have  made  separate  wills.  After  the  death  of  the  testatrix,  her  hus- 
band,'william  Daniel,  accepted  the  provisions  of  the  will  In  his  favor,  and 
under  such  circumstances  equity  will  enforce  the  provisions  of  the  will 
against  him  and  all  persons  holding  under  him  who  took  with  notice  of  it8 
provisions  or  without  value.  Courts  have  gone  even  further,  and  held  that, 
if  the  survivor  is  threatening  to  dispose  of  his  property  in  violation  of  the 
provisions  of  the  will,  they  will  grant  relief  by  way  of  injunction,  upon  appli- 
cation of  the  children  who  Mould  be  prejudiced  thereby."  Bower  v.  Daniel^ 
198  Mo.  289,  321,  95  S.  W.  347,  357  (1906). 


Ch.  5)  KINDS   OF   WILLS   AND  TESTAMENTS.  Ill 

proposition  for  which  the  defendant  contends,  with  the  result  that  he 
must,  I  think,  fail  to  obtain  the  declaration  which  he  seeks.  I  pro- 
nounce for  the  will  of  1904.*' 

18  But  see  Turnipseed  v.  Sirrine,  57  S.  C.  559,  35  S.  E.  757,  76  Am.  St. 
Rep.  580  (1900). 

"A  joint  will  contained  In  a  single  instrument  is  the  will  of  each  of  the 
makers,  and  at  the  death  of  one  may  be  probated  as  his  will  and  be  again 
probated  at  the  death  of  the  other  as  the  will  of  the  latter.  Wills  may  be 
joint  or  mutual,  or  both  joint  and  mutual.  A  'joint  will'  is  one  where  the 
same  instrument  is  made  the  will  of  two  or  more  persons  and  is  jointly  signed 
by  them.  It  is  not  necessarily  either  mutual  or  recipx'ocal.  'Mutual  wills' 
may  be  defined  as  the  separate  wills  of  two  persons  which  are  reciprocal  in 
their  provisions.  A  will  that  is  both  joint  and  mutual  is  one  executed  jointly 
by  two  or  more  i)ersons,  the  provisions  of  which  are  reciprocal,  and  which 
shows  on  its  face  that  the  devises  are  made  one  in  consideration  of  the  other. 
These  several  classes  of  wills  have  some  characteristics  that  distinguish  thera 
one  from  the  other.  A  joint  will  which  is  not  reciprocal  is  simply  the  individ- 
ual personal  will  of  each  of  the  persons  signing  the  same  and  is  subject  to  the 
same  rules  that  would  apply  if  the  wills  were  several.  Mutual  wills — that  is, 
where  two  persons  execute  wills  reciprocal  in  their  provisions  but  separate 
instrimients — may  or  may  not  be  revocable  at  the  pleasure  of  either  party,  ac- 
cording to  the  circumstances  and  understanding  upon  which  they  were  ex- 
ecuted. To  deprive  either  party  of  the  right  to  revoke  such  mutual  will  it 
is  necessary  to  prove,  by  clear  and  satisfactory  evidence,  that  such  wills  were 
executed  in  pursuance  of  a  contract  or  a  compact  between  the  parties,  and 
that  each  is  the  consideration  for  the  other;  and,  even  in  cases  where  mutual 
wills  have  been  executed  in  pursuance  to  a  compact  or  agreement  between 
the  parties,  the  law  appears  to  be  well  settled  that  either  party  may,  during 
the  lifetime  of  both,  withdraw  from  the  compact  and  revoke  the  will  as  to 
him.  A  joint  and  mutual  will  is  revocable  during  the  joint  lives  by  either 
party,  so  far  as  relates  to  his  own  disposition,  upon  giving  notice  to  the  other ; 
but  it  becomes  irrevocable  after  the  death  of  one  of  them  if  the  survivor  takes 
advantage  of  the  provisions  made  by  the  other,"  Vickers,  J.,  in  Frazier  v.  Pat- 
terson, 243  111.  SO,  90  N.  E.  216-218  (1909). 

For  discussions  of  joint  and  mutual  wills,  see  12  Prob.  Rep.  Ann.  64,  note; 
68  Am.  Dec.  407,  note ;   38  L.  R.  A.  289,  note. 


112  LAST   WILLS  AND   TESTAMENTS,  (Part  1 

CHAPTER  VI 
THE  EXECUTION  OF  WRITTEN  WILLS  AND  TESTAMENTS 


SECTION  1.— STATUTES*^ 


THE  STATUTES  OF  WILLS 

By  the  Statute  of  32  Hen.  VIII,  c.  1  (1540),  it  is  provided  that  all 
a.  d  every  person  and  persons  having  manors,  lands,  tenements,  or 
hereditaments  "shall  have  full  and  free  liberty,  power  and  authority  to 
give,  dispose,  will  and  devise,  as  well  by  his  last  will  and  testament  in 
writing,  or  otherwise  by  any  act  or  acts  lawfully  executed  in  his  life, 
all  his  said  manors,  lands,  tenements  or  hereditaments  or  any  of  them 
['holden  in  socage'  and  two-thirds  part  of  his  said  manors,  lands,  tene- 
ments or  hereditaments  'holden  by  knight's  service']  at  his  free  will 
and  pleasure ;  any  law,  statute  or  other  thing  heretofore  had,  made  or 
used  to  the  contrary  notwithstanding."  ^ 

By  the  Statute  of  34  &  35  Hen.  VIII,  c.  6  (1542),  lands  devisable 
were  confined  to  "estates  in  fee  simple  only" ;  ^  but  a  person  seised 
in  fee  simple  in  severalty,  in  coparcenary  or  in  common,  "in  possession, 
reversion,  remainder,  or  of  rents  or  services  incident  to  any  reversion 
or  remainder"  is  given  the  right  to  devise  "to  any  person  or  persons 
(except  bodies  politik  and  corporate)  by  his  last  will  and  testament  in 
writing,  or  otherwise  by  any  act  or  acts  lawfully  executed  in  his  life, 
by  himself  solely,  or  by  himself  and  other  jointly,  severally  or  particu- 
larly, or  by  all  those  ways,  or  any  of  them,  as  much  as  in  him  of  right 
is  or  shall  be"  all  of  his  socage  and  two  parts  out  of  three — i.  e.,  two- 
thirds — of  his  knight's  service  "manors,  lands,  tenements,  rents  and 
hereditaments,  or  any  rents,  commons,  or  other  profits  out  of  or  to  be 
perceived  of  the  same,  or  out  of  any  parcel  thereof."  * 

1  For  convenlonce  of  reference,  the  provisions  as  to  competency  of  witnesses 
are  ^ven  post.  pp.  186-188. 

2  The  lan^iage  quoted  and  not  bracketed  Is  from  section  I  of  the  statute. 
»  See  section  III  of  the  statute. 

*  The  language  quoted  is  from  section  IV  of  the  statute. 


Ch.  6)  EXECUTION   OF   WRITTEN   WILLS   AND   TESTAMENTS.  113 

THE  STATUTE  OF  FRAUDS 

V.  And  be  it  further  enacted  *  *  *  that  *  *  *  all  de- 
vises and  bequests  of  any  lands  or  tenements  *  *  *  shall  be  in 
writing,  and  signed  by  the  party  so  devising  the  same,  or  by  some 
other  person  in  his  presence  and  by  his  express  directions,  and  shall 
be  attested  and  subscribed  in  the  presence  of  the  said  devisor  by  three 
or  four  credible  witnesses,  or  else  they  shall  be  utterly  void  and  of 
none  effect. 

29  Car.  II,  c  3,  sec.  V  (1676). 


THE  WILLS  ACT 

I.  Be  it  enacted  *  *  *  that  the  words  and  expressions  herein- 
after mentioned  *  ♦  *  shall  in  this  act,  except  where  the  nature 
of  the  provision  or  the  context  of  the  act  shall  exclude  such  construc- 
tion, be  interpreted  as  follows;  (that  is  to  say),  the  word  "will"  shall 
extend  to  a  testament,  and  to  a  codicil,  and  to  an  appointment  by  will 
or  by  writing  in  the  nature  of  a  will  in  exercise  of  a  power,  and  also 
to  a  disposition  by  will  and  testament  or  devise  of  the  custody  and 
tuition  of  any  child  ♦  *  *  and  to  any  other  testamentary  disposi- 
tion. 

IX.  And  be  it  further  enacted,  that  no  will  shall  be  valid  unless  it 
shall  be  in  writing  and  executed  in  the  manner  hereinafter  mentioned ; 
(that  is  to  say),  it  shall  be  signed  at  the  foot  or  end  thereof  by  the  tes- 
tator, or  by  some  other  person  in  his  presence  and  by  his  direction; 
and  such  signature  shall  be  made  or  acknowledged  by  the  testator  in 
the  presence  of  two  or  more  witnesses  present  at  the  same  time,  and 
such  witnesses  shall  attest  and  shall  subscribe  the  will  in  the  presence 
of  the  testator,  but  no  form  of  attestation  shall  be  necessar>'. 

X.  And  be  it  further  enacted,  that  no  appointment  made  by  will,  iu 
exercise  of  any  power,  shall  be  valid,  unless  the  same  be  executed  in 
manner  hereinbefore  required;  and  every  will  executed  in  manner 
hereinbefore  required  shall,  so  far  as  respects  the  execution  and  attes- 
tation thereof,  be  a  valid  execution  of  a  power  of  appointment  by  will, 
nptwithstanding  it  shall  have  been  expressly  required  that  a  will  made 
in  exercise  of  such  power  should  be  executed  with  some  additional  or 
other  form  of  execution  or  solemnity. 

XIII.  And  be  it  further  enacted,  that  every  will  executed  in  manner 
hereinbefore  required  shall  be  valid  without  any  other  publication 
thereof. 

7  Wm.  IV  &  1  Vict.  c.  26,  §§  I,  IX,  X,  XIII  (1837).» 

8  For  the  provision  of  the  Wills  Act  defining  the  wills  and  estates  to  which 
the  act  did  not  extend,  see  section  XXXIV  of  the  act  in  the  appendix,  post, 
p.  767. 

Cost.  Wills— * 


114  LAST  WILLS  AND  TESTAMENTS.  (Part  1 


THE  WILLS  ACT  AMENDMENT  ACT,  1852. 

Be  it  therefore  enacted     *     *     ♦     (as  follows): 

L  *  *  *  Every  will  shall,  so  far  only  as  regards  the  position 
of  the  signature  of  the  testator,  or  of  the  person  signing  for  him  as 
aforesaid,  be  deemed  to  be  valid  within  the  said  enactment  [the  Wills 
Act],  as  explained  by  this  act,  if  the  signature  shall  be  so  placed  at  or 
after,  or  following,  or  under,  or  beside,  or  opposite  to  the  end  of  the 
will,  that  it  shall  be  apparent  on  the  face  of  the  will  that  the  testator 
intended  to  give  effect  by  such  his  signature  to  the  writing  signed  as 
his  will,  and  that  no  such  will  shall  be  affected  by  the  circumstance 
that  the  signature  shall  not  follow  or  be  immediately  after  the  foot 
or  end  of  the  will,  or  by  the  circumstance  that  a  blank  space  shall  inter- 
vene between  the  concluding  word  of  the  will  and  the  signature,  or 
by  the  circumstance  that  the  signature  shall  be  placed  among  the 
words  of  the  testimonium  clause  or  of  the  clause  of  attestation,  or 
shall  follow  or  be  after  or  under  the  clause  of  attestation,  either  with 
or  without  a  blank  space  intervening,  or  shall  follow  or  be  after  or 
under,  or  beside  the  names  or  one  of  the  names  of  the  subscribing 
witnesses,  or  by  the  circumstance  that  the  signature  shall  be  on  a  side 
or  page  or  other  portion  of  the  paper  or  papers  containing  the  will 
whereon  no  clause  or  paragraph  or  disposing  part  of  the  will  shall  be 
written  above  the  signature,  or  by  the  circumstance  that  there  shall  ap- 
pear to  be  sufficient  space  on  or  at  the  bottom  of  the  preceding  side  or 
page  or  other  portion  of  the  same  paper  on  which  the  will  is  written 
to  contain  the  signature,  *  *  *  but  no  signature  under  the  said 
[Wills]  Act  or  this  act  shall  be  operative  to  give  effect  to  any  disposi- 
tion or  direction  which  is  underneath  or  which  follows  it,  nor  shall  it 
give  effect  to  any  disposition  or  direction  inserted  after  the  signature 
shall  be  made." 

15  &  16  Vict.  c.  24,  §  I  (1852). 


ECTION  2.— TESTATOR'S  KNOWLEDGE  OF  THE  INSTRU- 
MENT'S CONTENTS 


BEYER  et  al.  v.  HERMANN  et  a!. 
(Supreme  Court  of  Missouri,  Division  No.  1,  1903.    173  Mo.  295,  73  S.  W.  1G4.) 

Marshall,  J.'  This  is  an  action  to  contest  the  will  of  Anna  Her- 
mann, nee  Burger.     *     ♦     * 

2.  The  second  charge  is  that  the  will  was  not  executed  according  to 
law. 

«  Part  only  of  the  opinion  Is  given. 


Ch.  6)  EXECUTION   OF   WRITTEN   WILLS   AND   TESTAMENTS.  115 

The  plaintiffs  claim  that  the  justice  prepared  a  will,  and  read  it  and 
explained  it  to  the  decedent,  and  that  in  attempting  to  sign  her  name 
to  it  she  dropped  the  pen  and  blotted  the  paper,  and  thereupon  the 
justice  recopied  the  will,  and,  without  reading  or  explaining  the  copy 
to  her,  it  was  executed,  she  making  her  mark,  and  the  witnesses  sign- 
ing their  names. 

The  testimony  of  the  justice  is  not  altogether  clear  as  to  whether  he 
read  the  will  to  the  decedent  after  he  recopied  it  or  not.  It  is  suscep- 
tible of  the  construction  that  he  did,  and  also  that  he  did  not  do  so. 
But  whether  he  did  or  not,  it  is  uncontradicted  that  the  copy  was  a 
true  copy  of  the  will  that  was  spoiled  by  being  blotted,  and  that  the 
spoiled  will  was  read  and  explained  to  her,  and  in  fact  was  drawn  as 
she  directed.  This  being  true,  she  knew  the  contents  of  the  copy  as 
well  as  she  did  of  the  first  draft,  and  she  declared  to  the  witnesses, 
when  she  executed  the  copy,  that  it  was  her  will.  This  fills  the  re- 
quirements of  the  law  that  she  shall  know  the  contents.  Berberet  v. 
Berberet,  131  Mo.  399,  33  S.  W.  61,  52  Am.  St.  Rep.  631.  She  could 
not  read  written  English,  so  she  had  to  depend  upon  the  justice  to 
know  the  contents  of  the  will.  He  could  impart  such  knowledge  to  her 
either  by  reading  the  will  or  explaining  its  contents  to  her.  In  either 
case  she  would  only  know  what  he  read  or  what  he  said  about  it.  She 
would  not  know  whether  he  read  what  was  written  or  what  he  said 
he  had  written.  Therefore  she  had  to  rely  upon  the  integrity  of  the 
justice  to  read  or  explain  correctly  what  he  had  written.  No  one  else 
would  know  whether  he  had  done  so  or  not.  This  being  true,  it  can 
make  no  difference  in  law  that  the  copy  was  not  read  to  her,  for  she 
would  still  be  in  the  dark  as  to  whether  it  was  a  true  copy  or  not,  and 
also  whether  either  was  as  it  was  read  or  explained  to  be.  The  first 
draft  was  read  to  her,  correctly,  so  the  justice  says,  and  so  it  must  be 
taken,  because  no  one  else  could  know  whether  it  was  or  not.  The 
copy  was  a  true  copy  of  the  first  draft,  whose  contents  she  knew,  so  the 
.justice  say§,  and  so  it  must  be,  for  no  one  else  could  know  whether  it 
was  or  not.  The  whole  matter,  therefore,  rests  upon  the  integrity  of 
the  justice,  and  there  is  no  more  reason  for  doubting  that  the  copy  is  a 
true  copy  than  there  is  for  doubting  that  the  justice  (or  any  one  who 
writes  a  will)  read  or  explained  it  correctly  and  accurately. 

This  charge  must,  therefore  fail,  and  the  will  be  regarded  as  being 
executed  according  to  law.     *     *     * 

Finding  no  error  in  the  record,  the  judgment  of  the  circuit  court  is 
affirmed.    All  concur.'' 

7  See  Lipphard  v.  Humphrey,  209  U.  S.  204,  28  Sup.  Ct.  561,  52  L.  Ed.  783 
(1908).  In  Bradford  v.  Blossom,  207  Mo.  177,  105  S.  W.  289  (1907)  the  testa- 
trix instructed  the  person  whom  she  wanted  to  appoint  trustee  under  her 
will  to  have  a  will  drawn  making  certain  dispositions  of  property.  The  trus- 
tee had  an  entirely  different  will  drawn  and  executed  by  the  testatrLx.  The 
court  declared  (207  Mo.,  at  pages  226-227,  105  S.  W.  304)  that  "there  is  not  a 
Bcjntilla  of  evidence  in  this  record  which  tends  to  show  the  testatrix  had 
any  knowledge  whatever  of  the  provisions  of  or  contents  of  the  will  she  was 


116  LAST  WILLS  AND  TESTAMENTS.  (Part  1 


SECTION  3.— TESTATOR'S  SIGNATURE 


BROWN  V.  SACKVILIvE. 
(Court  of  Common  Bench,  1552-1558.     Dyer,  72a.) 

A  man  seised  of  lands  in  fee  simple  holden  in  socage  (being  sick 
in  bed)  sent  for  Mr.  Atkins,  a  man  learned  in  the  law,  and  desired  his 
counsel  in  making  his  will,  who  took  notes  of  it,  and  afterwards  de- 
parted from  the  devisor,  and  about  eight  of  the  clock  in  the  morning 
put  the  said  will  in  writing  according  to  due  form  of  law,  agreeably 
to  the  said  notes,  and  according  to  the  said  will  declared  unto  him, 
which  was  wholly  written  before  eleven  o'clock  of  the  same  day,  and 
the  devisor  died  at  twelve,  so  that  he  did  not  hear  the  said  will  read. 
Ex  depositione  Mr.  Atkins.  It  was  moved,  whether  this  was  a  good 
will,  or  not  ?  And  by  the  opinion  of  The  Court  in  the  Bench  in  Easter 
Term,  4  &  5  Ph.  &  M.  in  a  writ  of  quibus  brought  by  Brown  against 
Sackville,  in  evidence  upon  the  trial  of  the  issue  nul  disseisin,  that 
such  a  will  is  good  enough,  and  sufficient  by  the  statute.  So  the  same 
point  was  doubted  upon  the  last  will  of  Hinton  of  London  in  the  court 
of  wards,  M.  4  &  5  Eliz.,  whereof  articles  were  made  in  the  second 
year  of  E.  6,  ut  supra,  and  read  to  the  devisor  by  the  scrivener,  and 
written  at  length  after  his  death,  and  holden  as  above  well  enough.* 


BLACKWOOD  v.  DAMER. 

(Court  of  Delegates,  1783.    3  Phillim.  458,  note.) 

M.  Janssen  wrote  with  his  own  hand  instructions  for  a  will,  in  which 
he  left  the  residuum  to  his  youngest  daughter,  since  married  to  the 
Honorable  Lionel  Damer.  The  attorney,  in  writing  over  the  will, 
omitted  the  residuary  clause;  some  other  variations  were  made;  the 
draft  was  read  over  to  the  testator,  and  left  in  his  custody  two  days ; 
the  will  was  executed  in  due  form,  contained  legacies  to  the  executors. 
Thef  testator  always  afterwards  expressed  himself  as  having  left  the 
residuum  to  his  youngest  daughter.  The  attorney  deposed,  that  it 
was  merely  an  omission.  The  other  variations  he,  supposed  he  had 
received  verbal  instructions  to  make 

signing"  and  directed  the  entry  of  a  judgment  rejecting  the  will.  On  the  ne- 
cessity of  adirniative  proof  of  knowledge  by  testator  of  the  contents  of  the 
will,  where  the  testator  is  unable  to  read,  see  14  Am.  &  Eng.  Ann.  Gas.  876, 
note. 

8  Rut  where  the  testator  orally  announced  his  will,  and  his  statement  was 
written  in  the  form  of  a  will,  without  any  direction  by  him  that  it  be  done, 
and  then  was  not  read  over  to  hiui,  nor  assented  to  by  him,  it  was  held  not 
to  be  a  will.     Nash  v.  Edmunds,  Cro.  Eliz.  100  (1588). 


Ch.  6)  EXECUTION   OF   WRITTEN    WILLS   AND   TESTAMENTS.  117 

The  court  below  had  pronounced  for  the  instructions  as  part  of  the 
will. 

The  Delegates  decreed  that  the  residuary  clause  should  stand  as 
part  of  the  will,  but  no  other  part  of  the  instructions.* 


LEMAYNE  v.  STANLEY. 

(Ck)urt  of  Common  Pleas,  1681.    3  Lev.  1.) 

In  ejectment  upon  Not  guilty,  and  a  special  verdict,  the  case  was ; 
Stanley  seised  in  fee  writ  his  will  with  his  own  hand;  beginning,  "In 
the  name  of  God,  Amen,  I  John  Stanley  make  this  my  last  will  and  tes- 
tament," and  thereby  devised  the  lands  in  question,  and  put  to  his  seal, 
but  did  not  subscribe  his  name,  only  had  it  subscribed  by  three  wit- 
nesses in  his  presence ;  and  all  this  was  done  after  29  Car.  2,  against 
Frauds  and  Perjuries;  and  whether  this  was  a  good  will  to  pass  the 
lands,  was  the  question.  And  after  several  arguments  it  was  adjudged 
by  the  whole  court,  sc.  North,  Wyndham,  Charlton,  and  Levinz, 
to  be  a  good  will ;  for  being  written  by  himself,  and  his  name  in  the 
will,  it  is  a  sufficient  signing  within  the  Statute,  which  does  not  appoint 
where  the  will  shall  be  signed,  in  the  top,  bottom,  or  margin,  and  there- 
fore a  signing  in  any  part  is  sufficient.  And  per  North,  Wyndham, 
and  Charlton,  the  putting  of  his  seal  had  of  itself  been  a  sufficient 
signing  within  the  Statute;  for  signum  is  no  more  than  a  mark,  and 
sealing  is  a  sufficient  mark  that  this  is  his  will;  but  Levinz  doubted  of 
this  upon  the  case  in  Roll.  1  Abridgm.  245,  §  25.  Submission  to  an 
award  ita  quod  it  be  made,  signed,  and  delivered,  the  arbitrator  makes 
an  award,  and  delivers  it,  but  does  not  sign  it :  Et  Per  Cur'.  It  is 
not  good;  but  all  agreeing  upon  the  other  reason,  judgment  was  ac- 
cordingly given  for  the  defendant. 


EVERHART  et  al.  v.  EVERHART. 

(Circuit  Court,  S.  D.  Mississippi,  W.  D.,  1888.    34  Fed.  82.) 

Hill,  J.^"  *  *  *  With  the  purpose  of  settling  the  rights  of  the 
parties  without  further  litigation,  as  I  suppose,  both  parties  request 
me  to  determine  whether  or  not  the  proof  of  the  subscribing  witnesses 
taken  before  the  clerk  of  the  chancery  court  of  Issaquena  county,  and 
upon  which  the  paper  writing  was  admitted  to  probate  by  the  clerk  in 
common  form,  is  sufficient  to  establish  the  validity  of  the  paper  writ- 
ing as  the  last  will  and  testament  of  said  M.  Everhart,  so  as  to  vest 
the  title  to  the  lands  in  controversy  in  the  defendant. 

»  The  delegates  were  Mr.  Justice  Willes,  Mr.  Baron  Eyre,  Mr.  Justice  Nares, 
and  Dr.  Machum. 

10  Part  only  of  the  opinion  is  given. 


118  LAST   WILLS   AND  TESTAMENTS.  (Part  1 

The  testimony  is  quite  brief,  and  is  in  substance  as  follows :  That 
said  M.  Everhart  requested  one  of  the  witnesses  to  write  his  will^ 
which  he  did,  as  dictated  by  said  Everhart;  that  when  it  was  written 
said  Everhart  attempted  to  sign  it,  but  from  physical  debility  was  un- 
able to  do  so,  but  in  the  attempt  made  a  small  mark  or  scratch  on  the 
paper,  and  failed  to  do  more ;  that  he  said  he  made  and  published  the 
paper  as  his  last  will  and  testament.  The  paper  writing  shows  a  small 
mark  or  scratch  on  the  left-hand  comer,  but  no  name  attached  to  it. 
There  are  also  two  small  marks  or  dots  on  another  part  of  the  paper, 
very  dim,  and  look  as  though  made  with  the  point  of  a  pencil,  and  not 
at  the  usual  place  for  signing  such  a  paper,  by  the  party  executing  it. 
The  name  of  M.  Everhart  only  appears  in  the  commencement  of  the 
paper,  which  it  is  evident  was  not  intended  as  a  signature  of  the  tes- 
tator. The  draughtsman  was  not  requested  to  sign  the  testator's  name, 
and  the  testator's  effort  to  sign  the  paper  himself  shows  that  he  did 
not  recognize  the  signature  made  in  the  commencement  of  the  writing 
by  the  draughtsman  as  his  signature.^ ^  The  place  where  made,  and 
the  character  of  the  small  marks  and  dots,  furnish  no  evidence  that 
they  were  made  as  a  substitute  for  the  signature  of  the  testator. 

It  is  true  that  a  testator  may  sign  his  will  by  making  a  mark,  but 
he  must  intend  the  mark  as  a  substitute  for  his  name ;  and  when  there 
is  no  name  written,  or  anything  indicating  who  made  the  mark,  and 
especially  when  the  mark  is  made  at  an  unusual  place  for  the  signature, 
it  ought  to  require  very  satisfactory  evidence  that  the  mark  was  in- 
tended by  the  testator  as  his  signature,  or  as  a  substitute  for  it.  As 
already  stated,  to  make  a  will  valid  to  pass  the  title  to  real  estate,  under 
the  laws  of  this  state,  it  must  be  in  writing  and  signed  by  the  testator, 
or  by  some  other  person  in  his  presence,  and  by  his  special  direction. 
This  paper  writing  was  not  signed  by  any  other  person.  I  am  satisfied 
that  the  proof  exhibited  with  the  paper  writing  as  the  proof  upon 
which  it  was  admitted  to  probate  by  the  clerk  of  the  chancery  court, 
fails  to  show  that  the  testator  intended  the  marks  made  by  him  to  be  a 
substitute  for  his  signature,  if  indeed  he  knew  that  he  had  made  them 
at  all. 

I  am  satisfied,  looking  at  the  face  of  the  paper  propounded  as  the 
last  will  of  said  M.  Everhart,  and  the  proof  of  the  subscribing  wit- 
nesses exhibited  with  it,  that  this  paper  cannot  be  held  a  valid  will,  so 
as  to  vest  the  defendant  with  the  title  to  the  lands  described  in  the  bill. 
But  if  the  defendant  desires  so  to  do,  he  can  answer  the  bill,  when  an 

II  In  Armstrong's  Ex'r  v.  Armstrong's  Heirs,  29  Ala.  53S  (1857),  a  will  read- 
ing "I,  James  Armstrong,"  etc.,  dictated  by  tlie  testator  and  read  over  aurt 
approved  by  him,  was  laeld  to  be  a  valid  Avill.  Tlie  "James  Armstrong"  dic- 
tated at  the  beginning  of  tlie  will  was  deemed  the  signature  of  the  testator, 
put  there  by  another  person  in  his  presence  and  by  his  direction.  See  Adams 
V.  Field,  21  Vt.  256  (1849).  For  a  discussion  of  the  admissibility  of  parol 
evidence  to  show  the  testator's  intent  to  treat  his  name  at  the  beginning  as 
a  signature,  see  42  Am.  Dec.  571,  note;  70  Am.  Doc.  442.  note.  See,  also,. 
Warwick  v.  Warwick,  80  Va.  59C,  10  S.  E.  843,  6  L.  K.  A.  775  (1800). 


Ch.  6)  EXECUTION   OF  WRITTEN   WILLS   AND  TESTAMENTS.  119 

issue  will  be  made  up  to  be  tried  by  a  jury  upon  the  evidence  produced 
by  both  parties ;  and  upon  such  trial  what  is  here  said  will  have  no 
influence  with  either  court  or  jury,  but  the  cause  will  be  determined  as 
though  these  remarks  had  never  been  made,  or  even  conceived.^ ^ 


RILEY  v.  RILEY. 

(Supreme  Court  of  Alabama,  18G0.  .  36  Ala.  406.) 

The  proponent  of  the  will  of  William  M.  Riley  offered  T.  J.  Rob- 
bins  as  a  witness,  who  testified  that  he  wrote  the  instrument  propound- 
ed for  probate  at  the^ request  of  said  W.  M.  Riley,  and  subscribed  said 
Riley's  name  to  it  as  testator,  at  his  request,  in  his  presence,  and  by 
his  direction;  that  he  also  wrote  the  name  of  Martha  O.  Nettles  as  a 
subscribing  witness  thereto,  at  the  request  of  said  Riley ;  that  said 
Martha  O.  Nettles  was  present  at  the  time,  and  did  not  object  to  his 
writing  her  name,  but  assented  and  agreed  thereto ;  that  said  Riley 
requested  him  to  write  the  name  of  said  Martha  O.  Nettles  as  a  wit- 
ness to  said  instrument,  saying  that  he  (witness)  could  write  better 
than  she  could ;  that  said  Martha  O.  Nettles  could  read  and  write  very 
well — perhaps  better  than  himself;  and  that  he  also  subscribed  his  own 
name  as  a  witness  to  said  instrument.  Martha  O.  Nettles  testified  in 
corroboration.  Over  objection  the  court  left  it  to  the  jury  to  say 
whether  the  will  was  duly  attested. 

R.  W.  Walker,  J.^^  1.  The  decree  in  this  case  must  be  reversed. 
It  was  for  the  court  to  determine  what  facts  were  necessary  to  estab- 

12  On  signing  by  mark,  see  4  Prob.  Rep.  Ann.  258;  22  L.  R.  A.  370,  note. 
On  a  signature  by  mark  made  by  one  able  to  write,  see  In  re  Pope,  139  N.  C. 
484,  52  S.  E.  235,  7  L.  R.  A.  (N.  S.)  1193,  111  Am.  St.  Rep.  813  (1905)  ;  Main  v. 
Ryder,  84  Pa.  217  (1877).  The  mark  of  testator  is  effective  as  a  signature, 
although  in  writing  the  testator's  name  next  to  the  mark  the  scrivener  mis- 
spells it.  Succession  of  Crouzeilles,  106  La,  Ann.  442,  31  South.  64  (1901). 
Or  puts  down  a  wrong  first  name.  Rook  v.  Wilson,  142  Ind.  24,  41  N.  E.  311, 
51  Am.  St.  Rep.  163  (lS9.o).  The  mark  may  consist  of  an  X,  Thompson  v. 
Thompson,  49  Neb.  157,  68  N.  W.  372  (1896) ;  or  of  the  testator's  first  name, 
Estate  of  Knox,  131  Pa.  220,  18  Atl.  1021,  6  L.  R.  A.  353,  17  Ain.  St.  Rep.  798 
(1890) ;  or  of  his  whole  name  misspelled  by  him.  Succession  of  Bradford,  124 
La.  44,  49  South.  972  (1909) ;  or  of  his  whole  name  stamped  at  the  proper 
place,  Jenkins  v.-  Gaisford,  3  Sw.  &  Tr.  93  (1863).  That  the  hand  of  testator 
may  be  guided  in  signing  his  name  or  making  his  mark,  see  Wood  v.  Rhode 
Island  Hospital  Trust  Co.,  27  R.  I.  295,  61  Atl.  757  (1905) ;  5  Prob.  Rep.  Ann. 
418.  note. 

"The  statute,  in  authorizing  the  execution  of  a  will  by  a  mark,  can  only 
mean  a  mark  made  with  the  intent  to  execute  the  will  thereby.  Without  sucli 
Intent,  paraphrasing  the  language  of  Chief  Justice  Gibson  in  Greenough  v. 
Greenough,  11  Pa.  497,  51  Am.  Dec.  567  (1S49)  'a  cross,  or  a  scratch,  or  a  scrawl, 
or  a  dot,  or  a  dash  *  *  ♦  imports  no  more  than  would  a  blot  or  a  stain,  or 
any  other  accidental  discoloration  of  the  paper  at  the  foot  of  the  instru- 
ment' '^  Mitchell,  J.,  in  Plate's  Estate,  148  Pa.  55,  59,  23  Atl.  1038,  33  Am.  St. 
Rep.  805  (1892). 

13  The  statement  of  facts  is  abbreviated,  and  part  only  of  the  opinion  is 
given.     See  further  report  post,  p.  183. 


120  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

lish  the  signing  and  attestation  of  the  will,  within  the  meaning  of  the 
Code.  But  the  effect  of  the  charge  given  was  to  refer  the  decision  of 
this  legal  question  to  the  jury.  Thomason  v.  Odum,  31  Ala.  108,  68 
Am.  Dec.  159 ;  Wright  v.  Boiling,  27  Ala.  259. 

As,  however,  the  main  questions  presented  by  the  record  will  doubt- 
less arise  on  another  trial  in  the  probate  court,  we  deem  it  proper  to 
express  our  views  in  regard  to  them  at  this  time. 

3,  In  order  to  constitute  a  valid  signing  of  a  will  by  the  testator,  it 
is  not  essential  that  he  should  write  his  own  name.  The  statute  ex- 
pressly allows  the  will  to  be  signed  by  another  for  him ;  and  his  name, 
when  written  by  another  for  him,  in  his  presence,  and  by  his  direction, 
will  have  the  same  effect  as  if  written  by  himself.  Armstrong  v.  Arm- 
strong, 29  Ala.  541;  1  Wms.  Ex'rs,  69;  Code,  §  1611.  And  though 
Lord  Sugden  has  expressed  a  contrary  opinion,  it  seems  to  be  settled 
that  such  signing  for  the  testator  may  be  made  by  a  person  who  is  one 
of  the  subscribing  witnesses  to  the  will.  In  re  Baily,  1  Curteis,  914 ; 
Smith  V.  Harris,  1  Robertson's  Eccl.  R.  262;  1  Wms.  Exrs.  69-70. 
*    *    *    Decree  reversed  and  cause  remanded.^* 


In  re  SEAMAN'S  ESTATE. 
ALBRIGHT  et  al.  v.  NORTH  et  al. 

(Supreme  Court  of  California,  1905.     146  Cal.  455,  80  Pac.  700,  106  Am.  St. 

Rep.  53.) 

Per  Curiam.*'  A  document  purporting  to  be  the  last  will  and  testa- 
ment of  Henry  Seaman,  deceased,  was  presented  to  the  superior  court, 
and  an  application  for  its  probate  was  denied  upon  the  ground  that  it 
had  not  been  properly  executed,  in  that  the  name  of  the  testator  was 
not  subscribed  at  the  end  thereof.  From  the  judgment  thus  entered, 
the  present  appeal  has  been  taken. 

The  instrument  was  written  upon  a  printed  form  or  blank  consist- 
ing of  four  pages  folded  in  the  middle,  like  ordinary  legal  cap.    Upon 

14  See  Elston  v.  Montgomery,  242  111.  348,  90  N.  E.  3  (1909). 

In  Waite  v.  Frisbio.  45  Minn.  361,  303.  47  N.  W.  1069,  1071  (1891).  Gilfil- 
lan,  C.  J.,  for  the  court,  announced  a  strict  rule  on  the  subject  of  the  ex- 
press direction  by  the  testator  that  another  sign  for  him.  He  said:  "The  di- 
rection to  sign  must  precede  the  act  of  signing.  Mere  knowledge  by  the 
testator  that  another  has  signed,  or  is  signing,  without  previous  direction,  and 
assent  to  or  acquiescence  in  it,  to  be  inferred  from  looks,  or  a  nod  of  the  head, 
or  motion  of  the  hand,  or  other  aml)iguous  token,  is  not  enough.  We  do  nut 
mean  that  the  express  direction  must  be  in  words.  A  person  unable  to  speak 
may  sometimes  be  able  to  convey  his  wish  that  another  sign  his  name  as  un- 
equivocally by  gestures  as  though  he  spoke  the  words;  but  the  meaning  of 
such  gestures  must  be  as  clear  and  unambiguous  as  the  words,  and  the  act  of 
Bigning  must  be  in  obedience  to  the  direction  thus  conveyed.  It  follows,  from 
what  we  have  said,  that  mere  assent  or  acquiescence  implied  by,  or  to  be  in- 
ferred from,  looks  or  gestures,  when  another  suggests  that  A.  or  B.  sign  the 
name,  is  not  such  an  express  direction  as-  the  statute  requires." 

16  The  concurring  opinions  of  Bealty,  C.  J.,  and  Angellotti,  J.,  are  omitted. 


Ch.  6)  EXECUTION   OF   WRITTEN   WILLS   AND   TESTAMENTS.  121 

the  upper  portion  of  the  first  page  was  a  printed  heading  and  introduc- 
tion, occupying  about  one-fourth  of  the  page.  In  the  printed  form 
the  remainder  of  that  page  and  the  entire  second  page  were  left  blank.' 
The  dispositive  parts  of  the  will  were  written  upon  the  blank  portion 
of  the  first  page  and  about  one-fourth  of  the  blank  portion  of  the  sec- 
ond page,  and  at  the  close  thereof  a  line  was  drawn  in  red  ink  trans- 
versely to  the  bottom  of  the  second  page.  At  the  top  of  the  third  page 
there  was  printed  a  form  for  the  appointment  of  an  executor,  and  a 
clause  revoking  all  former  wills,  and  immediately  after  this  a  testimo- 
nium clause,  underneath  which,  and  extending  to  a  little  below  the 
middle  of  the  page,  was  printed  an  attestation  clause.  The  blanks  left 
for  the  name  of  an  executor  and  for  the  attestation  of  the  will  were 
left  unfilled.  The  remainder  of  the  third  page  and  the  first  or  upper 
half  of  the  fourth  page  are  blank.  The  printed  form  was  prepared  to 
be  twice  folded  from  the  bottom  to  the  top,  and  across  the  face  of  the 
paper  as  thus  folded,  and  at  the  top  thereof,  were  the  printed  words : 
"The  Last  Will  and  Testament  of,"  under  which  the  scrivener  had 
written,  "Henry  Seaman."  Blank  forms  for  a  date  and  for  filing  the 
instrument  with  the  clerk  were  printed  underneath  this,  the  whole  oc- 
cupying the  upper  half  of  this  outside  face  of  the  paper  when  folded. 
Underneath  this  printed  matter  was  written,  "Henry  Seaman,"  and 
underneath  his  name  the  word  "witness,"  and  underneath  that  the 
names,  "M.  O.  Wyatt,  J.  H.  Wright."  The  remainder  of  the  fourth 
page  was  blank. 

It  was  shown  at  the  hearing  that  the  decedent  had  written  his  name 
at  that  place  in  intended  execution  of  his  will,  and  that  at  his  request 
Messrs.  Wyatt  and  Wright  had  signed  their  names  as  witnesses  there- 
to. It  was  also  shown  that,  with  the  exception  of  these  signatures, 
the  instrument  is  in  the  same  condition  as  it  was  when  fhe  decedent 
signed  his  name  thereto. 

The  right  to  make  a  testamentary  disposition  of  one's  property  is 
purely  of  statutory  creation,  and  is  available  only  upon  a  compliance 
with  the  requirements  of  the  statute.  The  formalities  which  the  Legis- 
lature has  prescribed  for  the  execution  of  a  will  are  essential  to  its 
validity,  and  cannot  be  disregarded.  The  mode  so  prescribed  is  the 
measure  for  the  exercise  of  the  right,  and  the  heir  can  be  deprived  of 
his  inheritance  only  by  a  compliance  with  this  mode.  For  the  purpose 
of  determining  whether  a  will  has  been  properly  executed,  the  inten- 
tion of  the  testator  in  executing  it  is  entitled  to  no  consideration.  For 
that  purpose  only  the  intention  of  the  Legislature,  as  expressed  in  the 
language  of  the  statute,  can  be  considered  by  the  court,  and  whether 
the  will,  as  presented,  shows  a  compliance  with  the  statute.  Estate  of 
Walker,  110  Cal.  387,  42  Pac.  815,  30  L.  R.  A.  460,  52  Am.  St  Rep. 
104. 

Section  1276,  Civ.  Code,  requires  every  will,  other  than  nuncupative 
or  olographic,  to  be  "subscribed  at  the  end  thereof"  by  the  testator,  in 
the  presence  of  two  attesting  witnesses,  each  of  whom  must,  in  his 


122  LAST  WILLS   AND   TESTAMENTS.  (Part  1 

presence  and  at  his  request,  sign  his  name  as  a  witness  "at  the  end  of 
the  will."  This  section  is  from  the  Revised  Statutes  of  New  York^ 
adopted  by  that  state  in  1830.  These  provisions  are  incorporated  into 
the  Civil  Code  prepared  for  adoption  by  that  state  by  David  Dudley 
Field,  and,  in  their  report  of  a  Civil  Code  to  the  Legislature  of  1871, 
the  code  commissioners  of  this  state  refer  to  this  Code  as  the  source  of 
the  section.  In  considering  the  section  the  decisions  of  that  state  upon 
the  same  question  are  therefore  entitled  to  great  consideration.  A 
similar  statute  was  enacted  in  England  in  1837  (St.  1  Vict.  c.  26),  but 
the  decisions  under  that  statute  as  to  what  constitutes  the  "end"  of  a 
will  are  inconsistent  and  contradictory.  In  the  earlier  cases  the  stat- 
ute received  a  very  liberal  construction  in  reference  to  the  amount  or 
€xtent  of  blank  space  that  might  be  left  between  the  termination  of  the 
will  and  the  signature  of  the  testator,  but  afterwards  the  same  judge 
who  gave  this  construction,  as  did  also  the  Privy  Council  in  afifirming^ 
his  judgment,  stated  that  he  felt  it  necessary  to  construe  the  act  more 
strictly,  on  the  ground  that  the  provision  was  intended  to  prevent  any 
addition  being  made  to  the  will  after  the  deceased  had  executed  it 
(Smee  v.  Bryer,  1  Robt.  Eccl.  616;  Williams  on  Executors,  *67) ; 
and  the  statute  was  construed  as  requiring  the  name  to  be  written  im- 
mediately after  the  termination  of  the  testamentary  provisions,  with- 
out any  space  whatever  between  them.  It  was  in  view  of  these  dif- 
ferent constructions  of  the  statute  that  in  1852  Parliament  passed  an 
explanatory  act  (St.  15  Vict.  c.  24)  known  as  "Lord  St.  Leonard's  Act," 
which  provided  that  the  will  should  be  valid  "if  the  signature  be  so 
placed  at  or  after  or  following  or  under  or  beside  or  opposite  to  the 
end  of  the  will,  that  it  should  be  apparent  on  the  face  of  the  will  that 
the  testator  intended  to  give  effect  by  such  his  signature  to  the  writ- 
ing signed  as  his  will,"  and  that  no  such  will  should  be  affected  by 
the  circumstance  that  "a  blank  space  shall  intervene  between  the  con- 
cluding end  of  the  will  and  the  signature,"  etc. ;  thus  permitting  an  in- 
quiry into  the  intention  of  the  testator,  contrary  to  the  rule  on  that 
subject  in  this  state.  The  provisions  of  this  act  are  so  directly  opposed 
to  section  1276,  Civ.  Code,  that  the  decisions  thereunder  are  not  en- 
titled to  any  consideration  in  interpreting  the  section.  Estate  of  Walk- 
er, 110  Cal.  387,  42  Pac.  815,  30  L.  R.  A.  460,  52  Am.  St.  Rep.  104. 
See,  also.  Matter  of  Conway's  Will,  124  N.  Y.  455,  26  N.  E.  1028, 
11  L.  R.  A.  796. 

The  provision  that  the  will  must  be  subscribed  at  the  end  thereof 
requires  the  testator's  name  to  be  written  at  the  termination  of  the 
testamentary  provisions  which  he  makes  in  the  instrument.  The  "will" 
at  whose  end  the  name  is  to  be  subscribed  is  not  the  sheet  of  paper 
or  other  material  upon  which  these  testamentary  provisions  are  writ- 
ten, but  it  is  the  declaration  which  the  testator  has  written  thereon  for 
such  testamentary  disposition,  and  the  "end  thereof"  is  not  the  foot  or 
physical  end  of  the  sheet  of  paper  upon  which  the  "will"  is  written, 
but  is  the  physical  termination  of  the  testamentary  provisions  which 


Ch.  6)  EXECUTION  OF   "WRITTEN   WILLS  AND  TESTAMENTS.  123 

constitute  the  will.  "The  act  of  authentication  must  take  place  at  the 
termination  of  the  testamentary  disposition."  McGuire  v.  Kerr,  2 
Braclf.  Sur.  (N.  Y.)  244.  "To  say  that,  where  the  name  is,  there  is 
the  end  of  the  will,  is  not  to  observe  the  statute.  That  requires  that, 
where  the  end  of  the  will  is,  there  shall  be  the  name.  It  is  to  make  a 
new  law  to  say  that,  when  we  find  the  name,  there  is  the  end  of  the 
will.  The  instrument  offered  is  to  be  scanned  to  learn  where  is  the 
end  of  it,  as  a  completed  whole,  and  at  the  end  thus  found  must  the 
name  of  the  testator  be  subscribed."  Sisters  of  Charity  v.  Kelly,  67 
N.  Y.  409;  Matter  of  O'Neil's  Will,  91  N.  Y.  522;  Matter  of  An- 
drews, 162  N.  Y.  1,  56  N.  E.  529,  48  L.  R.  A.  662,  76  Am.  St.  Rep. 
294. 

The  requirement  that  the  name  shall  be  subscribed  "at"  the  end  of 
the  will  is  not  satisfied  by  having  that  name  written  at  any  place  "after" 
the  termination  of  the  written  matter,  irrespective  of  the  relation  which 
such  place  bears  to  the  concluding  portion  of  the  will.  This  provi- 
sion does  not,  however,  of  necessity,  require  that  it  shall  be  in  imme- 
diate juxtaposition  with  the  concluding  words  of  the  instrument,  but 
that  it  shall  be  so  near  thereto  as  to  afford  a  reasonable  inference  that 
the  testator  thereby  intended  to  indicate  an  authentication  of  the  in- 
strument as  a  completed  expression  of  his  testamentary  purposes.  It 
must  appear  upon  the  face  of  the  instrument  not  only  that  he  intended 
to  place  it  at  the  end  of  his  testamentary  provisions,  but  that  he  has 
in  fact  placed  it  in  such  proximity  thereto  as  to  constitute  a  substan- 
tial compliance  with  this  requirement  of  the  statute.  While  a  slight 
space,  such  as  a  single  line,  or  even  more,  might  be  left  blank  between 
the  written  matter  and  the  name,  without  impairing  the  validity  of  the 
will,  yet  to  leave  blank  an  entire  page  between  the  two  would  indicate 
a  disregard  of  the  requirements  of  the  statute,  whether  resulting  from 
ignorance  or  intention,  which  would  prevent  its  admission  to  probate. 
See  Soward  v.  Soward,  1  Duv.  (Ky.)  126. 

Appellants  have  cited  the  case  of  Oilman's  Will,  38  Barb.  (N.  Y.) 
364,  in  which  the  written  matter  of  the  will  terminated  four  lines 
above  the  bottom  of  the  page  where  the  testator  signed  his  name,  and 
in  which  the  court  said :  "An  instrument  is  signed  at  the  end  when 
nothing  intervenes  between  the  instrument  and  the  subscription.  The 
place  named  in  the  statute  is  the  end.  The  end  of  an  instrument  in 
writing  commences  and  continues  until  something  else  or  some  other 
writing  occurs."  This  language  may  have  been  appropriate  to  the 
will  then  before. the  court,  but,  as  a  construction  to  be  given  to  the 
statute,  it  does  not  meet  with  our  approval,  and  is,  moreover,  incon- 
sistent with  the  construction  given  in  the  above  cases  cited  from  the 
Court  of  Appeals  of  that  state.  Particularly  do  we  dissent  from  the 
definition  of  "end"  as  given  in  the  last  sentence  of  the  quotation. 

The  formalities  which  the  Legislature  has  prescribed  for  the  ex- 
ecution of  wills  are  to  provide  against  false  and  fraudulent  wills,  and 
to  afford  means  of  determining  their  authenticity.     A  very  evident 


124  LAST   WILLS   AND   TESTAMENTS.  (Part  1 

purpose  of  requiring  the  testator's  name  to  be  subscribed  at  the  end 
of  the  will  is  not  only  that  it  may  thereby  appear  upon  the  face  of 
the  instrument  that  the  testamentary  purpose  which  is  expressed  there- 
in is  a  completed  act,  but  also  to  prevent  any  opportunity  for  fraud- 
ulent or  other  interpolations  between  the  written  matter  and  the  sig- 
nature. McGuire  v.  Kerr,  2  Bradf.  Sur.  (N.  Y.)  244;  Matter  of 
O'Neil's  Will,  91  N.  Y.  516 ;  Matter  of  Andrews'  Will,  43  App.  Div. 
394,  60  N.  Y.  Supp.  141 ;  s.  c,  affirmed,  163  N.  Y.  1,  56  N.  E.  529, 
48  L.  R.  A.  662,  76  Am.  St.  Rep.  294 ;  Matter  of  Hewitt's  Will,  91 
N.  Y.  261;  Matter  of  Conway's  Will,  124  N.  Y.  455,  26  N.  E.  1028, 
11  L.  R.  A.  796;  Soward  v.  Soward,  1  Duv.  (Ky.)  126;  Ramsey  v. 
Ramsey,  13  Grat.  (Va.)  664,  70  Am.  Dec.  438 ;  Warwick  v.  Warwick, 
86  Va.  596,  10  S.  E.  843,  6  L.  R.  A.  775 ;  Wineland's  Appeal,  118 
Pa.  37,  12  Atl.  301,  4  Am.  St.  Rep.  571.  "The  statutory  provision  re- 
quiring the  subscription  of  the  name  to  be  at  the  end  is  a  wholesome 
one,  and  was  adopted  to  remedy  real  or  threatened  evils.  It  should 
not  be  frittered  away  by  exceptions"  (Sisters  of  Charity  v.  Kelly,  67 
N.  Y.  409)  "or  by  judicial  construction"  (Matter  of  Whitney,  153 
N.  Y.  259,  47  N.  E.  272,  60  Am.  St.  Rep.  616),  "or  defeated  by  lax 
interpretation"  (Clancy  v.  Clancy,  17  Ohio  St.  134).  "The  purpose  of 
the  law  which  requires  the  subscription  to  be  at  the  end  of  the  will 
is  to  prevent  fraudulent  additions  to  a  will  before  or  after  its  execu- 
tion, and  the  statute  should  be  so  construed  as  to  accomplish  this  pur- 
pose."    Younger  v.  Duffie,  94  N.  Y.  535,  46  Am.  Rep.  156. 

It  is  immaterial  that  there  is  no  charge  of  fraud  in  any  particular 
case.  A  failure  to  comply  with  the  formalities  required  by  a  statute 
enacted  for  the  prevention  of  fraud  is  not  excused  by  showing  that  in 
the  particular  case  under  consideration  there  was  no  fraud.  The  stat- 
ute in  question  was  enacted  to  protect  the  wills  of  the  dead  from  al- 
teration. If  opportunity  for  such  alteration  is  permitted,  the  fraud 
may  be  so  deftly  accomplished  as  to  prevent  its  discovery,  and  for 
this  reason  the  construction  to  be  given  the  statute  should  be  such  as 
will  control  the  execution  of  all  wills.  "The  legislative  intent  was 
doubtless  to  guard  against  fraud  and  uncertainty  in  the  testamentary 
disposition  of  property  by  prescribing  fixed  and  certain  rules  by 
which  to  determine  the  validity  of  all  instruments  purporting  to  be 
wills  of  deceased  persons."  Matter  of  the  Will  of  O'Neil,  91  N.  Y. 
516. 

It  is  true,  as  suggested  by  the  appellants,  that  there  is  the  same 
opportunity  for  fraudulent  interpolations  in  the  will  if  the  testator 
should  leave  sufficient  space  therefor  between  the  several  items  of  his 
will.  But  it  is  a  sufficient  answer  to  this  suggestion  that  the  form  in 
which  the  provisions  of  a  will  are  drafted  is  no  part  of  its  execution, 
and  that  the  Legislature  has  not  attempted  to  prescribe  the  form  in 
which  the  testator  shall  express  his  testamentary  purpose,  or  in  which 
the  will  shall  be  drafted,  but  only  the  form  in  which  it  is  to  be  "ex- 
ecuted and  attested."     See  Hcady's  Will,  15  Abb.  Prac,  N.  S-  (N.  Y.)- 


Ch.  6)  EXECUTION  OF  WRITTEN   WILLS  AND   TESTAMENTS.  125 

211 ;  Matter  of  Collins,  5  Redf.  Sur.  (N.  Y.)  20.  In  Estate  of  Blake, 
136  Cal.  306,  68  Pac.  837,  89  Am.  St.  Rep.  135,  the  testator  left  a 
blank  space  of  several  lines  between  the  items  in  which  he  disposed 
of  his  property  and  the  items  appointing  an  executor  and  revoking 
his  former  will.  These  last  items  were,  however,  testamentary  pro- 
visions (Sisters  of  Charity  v.  Kelly,  67  N.  Y.  415)  ;  and,  as  they 
constituted  a  part  of  his  will,  the  end  thereof  was  not  reached  until 
they  had  been  written  upon  the  paper,  and,  as  his  name  was  sub- 
scribed to  the  testamentary  clause,  which  immediately  followed  these 
items,  it  was  held  that  it  was  subscribed  at  the  end  of  the  will. 

A  question  similar  to  the  one  involved  herein  was  presented  in  So- 
ward  v.  Soward,  1  Duv.  186.  The  statute  of  Kentucky  required  the 
witnesses,  as  well  as  the  testator,  to  "subscribe"  the  will  with  their 
names,  which  the  courts  of  that  state  construed  to  mean  that  they 
should  write  their  names  at  the  close  of  the  will.  In  the  will  then 
before  the  court  the  witnesses  wrote  their  names,  as  did  the  testator 
in  the  present  case,  on  the  outside  or  fourth  page  of  the  sheet  after 
it  had  been  folded,  and  across  it  as  so  folded.  The  court  held  that 
this  was  not  a  compliance  with  the  statute,  saying:  "So  far  from  sub- 
scribing their  names  to  the  will,  it  may  be  said  with  much  more  pro- 
priety and  accuracy  of  speech  that  they  merely  indorsed  the  paper 
enveloping  and  inclosing  the  will,  without  any  accompanying  writing 
or  memorandum  to  indicate  the  purpose  of  the  indorsement,  or  show- 
ing any  connection  whatever  between  the  indorsement  and  the  will." 
In  Roy  v.  Roy's  Ex'r,  16  Grat.  (Va.)  418,  84  Am.  Dec.  696,  the  sheet 
of  paper  -upon  which  the  will  was  written  was  folded  in  the  form  of 
a  letter,  and  the  words,  "David  M.  Roy's  Will,"  were  indorsed  upon 
the  back  in  the  handwriting  of  the  deceased  at  about  the  middle  of 
the  third  page  when  the  paper  was  unfolded.  His  name  was  not 
signed  at  the  end  of  the  writing.  The  court  held  that  it  was  not  en- 
titled to  probate,  saying:  "It  is  an  unusual  mode  of  signing  or  au- 
thenticating a  paper  as  a  concluded  act  by  indorsing  the  name  of  the 
person  executing  it  on  the  back.  Such  indorsement  is  usually  made 
as  a  label  or  mark  to  distinguish  it  from  other  papers,  and  probably 
it  never  occurred  to  the  deceased  that  it  was  to  have  any  other  func- 
tion in  this  case."  The  same  rule  was  followed  in  Warwick  v.  War- 
wick, 86  Va.  596,  10  S.  E.  843,  6  L.  R.  A.  775;  Patterson  v.  Ran- 
som, 55  Ind.  402. 

Whether  the  deceased  intended  to  execute  his  will  in  conformity 
with  the  requirements  of  the  statute  cannot  be  shown  by  parol  or  ex- 
trinsic evidence.  Parol  evidence  cannot  be  admitted  to  show  that  the 
testator  intended  the  space  signed  by  him  to  be  the  end  of  the  will,  if, 
upon  an  inspection  of  the  instrument,  it  appears  that  it  is  not  in  fact 
at  the  end.  Evidence  will  not  be  received  for  the  purpose  of  showing 
that  he  intended  to  comply  with  the  requirements  of  the  statute  if  it 
appears  upon  the  face  of  the  instrument  that  he  had  not  in  fact  so 
complied.     It  must  appear  upon  the   face  of  the  will  itself  that  its 


126  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

physical  execution  is  in  accordance  with  these  requirements.  Matter 
of  Hewitt's  Will,  91  N.  Y.  261;  Warwick  v.  Warwick,  86  Va.  596, 
10  S.  E.  843,  6  L.  R.  A.  775 ;  Patterson  v.  Ransom,  55  Ind.  402. 

Under  these  considerations,  it  must  be  held  that  the  testator  did  not 
comply  with  the  requirements  of  the  statute  in  the  execution  of  his 
will,  and  the  judgment  of  the  superior  court  is  therefore  affirmed.'* 


In  re  SWIRE'S  ESTATE. 

Appeal  of  McGINLEY. 

(Supreme  Court  of  Pennsylvania,  1909.     225  Pa.  188,  73  All.  1110.) 

From  a  decree  refusing  an  issue  devisavit  vel  non  in  estate  of  Hetty 
W.  Swire,  deceased,  Samuel  T.  McGinley  appeals. 

The  case  turned  upon  whether  the  testatrix  had  signed  the  codicil 
to  her  will  at  the  end  thereof. 

The  codicil  was  as  follows: 
^      >■■.     ?      i'C'^  Second  Codicil  to  Will. 


>     c 


Si      „,  Wo      ,,  aj-S 


3  K  ^3 

£  !« Q  "I,  Hetty  Wharton  Swire,  do  hereby  make  and  pub- 

«  ^  -cJ  lisb  this  Second  Codicil  to  my  last  will  and  testament 

2      «i'~'-M  S-^S  as  follows : 

H     ^  ^-2  S  ^1  "1-  I  Siv^  ^^^  bequeath  unto  Lily  McGinley  my  seal 

'H  "-^  cc  '^  p  skin  coat. 

i      >-'6 S  ^V^-^  "2.  I  sive  and  bequeath  unto  Edna  Pennock  my  black 

5      a-^  0)  "K  «'S  and  white  check  siVk  dress. 

n     -^  £  S  S  "3.  I  give  and  bequeath  unto  Mrs.  William  McGinley 

a     ^.Sm  o^oo^'  (Fortieth  Street)  my  cut  glass  ware. 

*S      2^0,  ^c-S'-^i  "4.  I  give  and  bequeath  unto  Lizzie  Gibbs  my  cloth 

Q     +-'  t»j5  S  >i  t»>  coat. 

^^•^4)  cSflgS  "5.  I   give   and   bequeath   unto  James  P.   Cairns   the 

'•S^.S2  xJocM^  large  pictures  of  my  husband,  David  Owen  Swire,  and 

?SS^S  i"£^"=-  myself. 

'i<a'^^  E^l-g  "6.  I  give  and  bequeath  unto  Lewis  E.  Herring  the 

§<t:^    ._!  g'-S^  ci  ornaments  on  the  mantel  in  the  parlor  of  my  residence 

.00,^^  -^-Sco)  No.  5000  Walton  Avenue,  Philadelphia. 

ro-^Sga  "g^c^  "7.  I  give  and  bequeath  unto  the  Misses  Bradley  and 


g  g  "-^  "^      ==  ^•'C'S     to  Mrs.  Clara  Mitchell,  my  other  dresses 

^a;5=J      ^^^^<o  "8.  I   give   and   bequeath    unto   my   Cousm   lienjamiu 

.j:2'S:i^'Elt^;Tj'S  K-r^      Bradley  my  Knit  Slumber  Robe. 

^>.HH  >^  ?HH  t- OM  "In   Witness  Whereof  I  have  hereunto  set  my  hand 

^  a    .  §    .-^    "c-^  a      »"*^  ^^^'  ^'^^^  Twentieth  day  of  April,  A.  D.  One  thou- 

ci  oSc-^^^.S  ^  <i)      sand  nine  hundred  and  six  (1906). 

*  I'  ^a'  fu'    ill  "Hetty  W.  Swire.     [Seal] 

"Signed,  sealed,  published  and  declared  by  the  above 
named  Hetty  W.  Swire  as  and  for  a  Second  Codicil  to 
her  last  will  and  testament  in  the  presence  of  us  who 
at  her  request  in  her  presence  and  in  the  presence  of 
each  other  have  hereunto  subscribed  our  names  as  wit- 
nesses, Edna  Pennock, 

"Alfred  Moore." 


16  See  Sears  v.  Sears,  77  Ohio  St.  104,  82  N.  E.  10i;7,  17  L.  II.  A.  (N.  S.)  3u3 
(10<»7);  In  re  Gibson's  Will,  128  App.  Div.  709,  113  N.  Y.  Supp.  200  (1908). 
But  see  David  S.  Baker's  Appeal,  107  Pa.  3.S1,  52  Am.  Rep.  478  (1885);  Mor- 
row's Estate,  204  Pa.  479,  54  Atl.   313   (1903).     "Thus  the  general  principle 


Ch.  6)  EXECUTION   OF   WRITTEN   WILLS   AND   TESTAMENTS.  127 

Mitchell,  C.  J.  The  statute  requires  that  a  will  shall  be  in  writ- 
ing, and  signed  by  the  testator  "at  the  end  thereof."  The  end  meant 
by  this  provision  is  the  logical  end  of  the  language  used,  which  s'lows 
that  the  testamentary  purpose  has  been  fully  expressed.  The  position 
of  the  signature  with  regard  to  the  bottom  or  end  of  the  page  is  only 
evidence  on  the  question  whether  the  testator  has  completed  the  ex- 
pression of  his  intention.  Prima  facie  that  is  the  natural  place  for 
the  signature  to  be  placed  to  show  the  full  expression  of  the  testator's 
wishes  and  therefore  is  presumptively  the  right  place  for  it,  but  it 
is  only  evidence  and  must  give  way  to  evidence  of  a  different  intent. 

In  Hays  v.  Harden,  6  Pa.  409,  Chief  Justice  Gibson  says :  "Signing 
at  the  end  oi  a  will  was  required  by  the  statute  to  prevent  the  evasion 
of  its  provisions  that  followed  the  English  statute  of  frauds,  which 
the  judges  held  to  be  satisfied  wherever  the  testator's  name,  in  his 
own  handwriting,  was  found  in  the  introductory  or  any  other  part  of 
the  instrument."  In  Heise  v.  Heise,  31  Pa.  246,  Strong,  J.,  says: 
"Nor  should  we  lose  sight  of  the  mischiefs  which  existed  at  the  time 
when  it  [the  statute]  was  enacted,  mischiefs  which  it  was  designed 
to  remedy.  Among  these,  none  was  more  serious  than  the  facility 
with  which  unfinished  papers,  mere  inchoate  expressions  of  inten- 
tion, were  admitted  to  probate  as  valid  wills  of  decedents.  Letters, 
memoranda,  mere  notes  unsigned,  which  were  entirely  consistent  with 
a  half  formed  purpose,  and  which  may  have  been  thrown  aside,  and 
never  intended  to  be  operative,  were  rescued  from  their  abandon- 
ment, proven  as  wills,  and  allowed  to  prevail  as  dispositions  of  prop- 
erty which  there  was  much  reason  to  believe  the  decedent  never  in- 

has  been  clearly  established  that  a  will  is  to  be  read  in  such  order  of  pages 
or  paragraphs  as  the  testator  manifestly  Intended,  and  the  coherence  and 
adaptation  of  the  parts  clearly  require.  In  writing  a  will  upon  the  pages 
of  foolscap  paper,  a  testator  may  or  may  not  conform  to  the  order  of  the 
consecutive  pages  of  the  folio;  there  is  no  law  which  binds  him  in  this  re- 
spect; he  may  begin  upon  the  fourth  page  of  the  folio  and  conclude  upon 
the  first,  or  he  may  commence  upon  the  first,  continue  upon  the  third,  and 
conclude  upon  the  second;  in  whatever  order  of  pages  it  may  be  written, 
however,  it  is  to  be  read,  as  in  Wikoff's  Appeal,  3  Harris  [15  Pa.]  281  [53 
Am.  Dec.  597],  according  to  their  internal  sense,  their  coherence  or  adapta- 
tion of  parts.  The  order  of  connection,  however,  must  manifestly  appear  up- 
on the  face  of  the  will;  it  cannot  be  established  by  extrinsic  proof.  Whilst, 
therefore,  the  end  of  the  writing  in  point  of  space  may  in  most  cases  be  tak- 
en as  the  end  of  the  disposition,  it  does  not  follow  that  in  all  cases  the  sig- 
nature must,  of  necessity,  be  there  -m-itten,  if  it  be  written  at  the  end  of 
the  will,  according  to  such  connection  and  arrangement  of  the  pages  or  sheets, 
as  the  obviously  inherent  sense  of  the  instrument  requires."  Clark,  J.,  in 
David  S.  Baker's  Appeal,  107  Pa.  381,  392,  52  Am.  Rep.  47S  (188.5).  In  Mader 
V.  Apple,  SO  Ohio  St.  691,  89  N.  E.  37,  23  L.  R.  A.  (N.  S.)  515  (1909)  there 
was  a  blank  space  amounting  to  23i/4  inches  between  the  end  of  the  dis- 
positive portions  of  the  will  on  page  2  and  the  testimonium  clause  and  signa- 
ture of  the  testatrix  near  the  bottom  of  page  3,  and  yet  it  was  held  that  the 
will  was  signed  at  the  end.  Where  a  testatrix  signed  in  the  attestation  clause, 
the  will  was  held  to  have  been  signed  at  the  end.  In  re  De  Hart's  Will  (Sur.) 
122  N.  Y.  Supp.  220  (1910).  On  signing  at  the  end  of  the  will,  see  2  Am.  & 
Eng.  Ann.  Gas.  730,  note ;  11  Am.  &  Eug.  Ann.  Gas.  1013,  note ;  17  L.  R.  A. 
(N.  S.)  353,  note ;  23  L.  R.  A.  (N.  S.)  515,  note. 


128  LAST   WILLS   AND   TESTAMENTS.  (Part   1 

tended.  It  was  to  remedy  this  mischief  that  the  act  of  1833  provided 
that  every  will  should  be  signed  at  the  'end  thereof;  that  thus,  by 
his  signature  in  that  place,  the  testator  should  show  that  his  testa- 
mentary purpose  was  consummated,  and  that  the  instrument  was  com- 
plete." And  in  Knox's  Estate,  131  Pa.  220,  18  Atl.  1031,  6  L.  R.  A. 
353,  17  Am.  St.  Rep.  798,  it  was  said :  "The  purposes  of  the  act  of 
1833  were  accuracy  in  the  transmission  of  the  testator's  wishes,  the 
authentication  of  the  instrument  transmitting  them,  the  identification 
of  the  testator,  and  certainty  as  to  his  completed  testamentary  purpose. 
The  first  was  attained  by  requiring  writing  instead  of  mere  memory 
of  witnesses,  the  second  and  third  by  the  signature  of  ^testator,  and 
the  last  by  placing  the  signature  at  the  end  of  the  instrument.  The 
first  two  requirements  were  derived  from  the  English  statute.  The 
third  was  new  (since  followed  by  the  act  of  1  Vict.  c.  26),  and  was  the 
result  of  experience  of  the  dangers  of  having  mere  memoranda  or  in- 
complete directions  taken  for  the  expression  of  final  intention.  Baker's 
Appeal,  107  Pa.  381,  52' Am.  Rep.  478;  Vernon  v.  Kirk,  30  Pa.  218." 

In  the  present  case  the  connected  sense  of  the  text  is  entirely  clear, 
though  it  does  not  follow  the  usual  order  of  arrangement.  But  it 
does  not  deviate  from  it  more  than  many  letters  written  in  the  style 
of  the  present  day  where  the  writing  jumps  from  the  first  to  the 
third  page  and  then  back  to  the  second.  The  full  substance  of  the 
testatrix's  intent  and  its  expression  are  there,  and  the  signature  is  at 
what  she  intended  and  regarded  as  the  end  of  her  will.  Where  that 
is  manifest,  the  continuity  of  sense  and  not  the  mere  position  on  the 
page  must  determine  the  statutory  "end  thereof"  as  the  place  for  the 
signature.  The  unusual,  and  as  it  might  be  called  irregular,  arrange- 
ment of  the  several  parts  of  the  will  is  not  so  great  as  in  Wikoff's  Ap- 
peal, 15  Pa.  281,  53  Am.  Dec.  597.  There  is  no  Pennsylvania  case 
which  conflicts  with  this  view,  though  care  must  be  taken  to  distin- 
guish cases  like  Hays  v.  Harden,  6  Pa.  409,  where  an  addition  after 
the  signature  was  held  to  be  testamentary  and  therefore  to  invalidate 
the  will;  Wikofif's  Appeal,  15  Pa.  281,  53  Am.  Dec.  597,  where  the 
converse  was  held  that  a  mere  memorandum  not  testamentary  in 
character  did  not  have  that  effect ;  Heise  v.  Heise,  31  Pa.  246,  where  a 
testamentary  clause  after  the  signature  but  not  signed,  and  shown  not 
to  have  been  on  the  will  when  the  latter  was  executed,  was  held  not 
to  affect  its  validity.  This  was  however,  a  fully  executed  will  and 
plainly  within  the  protection  of  the  clause  of  the  statute  that  no  will 
shall  be  repealed  otherwise  than  by  some  other  will  or  codicil  duly 
executed  and  proved,  or  by  burning,  cancelling,  obliterating,  or  de- 
stroying the  same,  by  the  testator  or  by  some  one  in  his  presence  and 
by  his  express  directions. 

We  are  not  unmindful  of  possible  danger  in  allowing  marginal  writ- 
ing to  be  counted  as  part  of  the  text  of  the  will.  Certainly  parol  tes- 
timony to  that  efifect  where  there  is  no  reference  in  the  will  to  identify 
and  incorporate  it  must  be  received  with  caution.    But  to  some  extent 


Ch.  6)  EXECUTION   OF  WRITTEN   WILLS  AND  TESTAMENTS.  129 

parol  testimony  must  always  be  admissible,  as  to  prove  signa  ures, 
show  identity,  etc.  The  exact  point  at  which  it  must  stop  cannot  be 
laid  down  in  any  hard  and  fast  terms,  but  must  depend  on  the  neces- 
sity of  the  case.  It  will  be  observed  that  in  Wikofif's  Appeal,  15  Pa. 
281,  53  Am.  Rep.  597,  and  Heise  v.  Heise,  31  Pa.  246,  the  testimony 
was  admitted  apparently  without  objection.  In  the  present  case  the 
question  is  purely  theoretical  as  the  good  faith  of  the  entire  transac 
tion  is  admitted.    Decree  affirmed.^^ 


FOSSELMAN  v.  ELDER. 

(Supreme  Court  of  Pennsylvania,  1881.     98  Pa.  159.) 
See  post,  p.  204,  for  a  report  of  the  case. 


In  re  GOODS  OF  MADDEN. 
(Irish  High  Court  of  Justice,  King's  Bench  Division.     [1905]  2  Ir.  612.) 

Application  that  the  will  of  Helen  A.  Madden  be  admitted  to  pro- 
bate. 

Andrews,  J.^*    After  a  careful  consideration  of  the  evidence  which 
has  been  adduced,  and  a  close  inspection   and  examination  which  1 
have  made  of  the  four  sheets  of  paper  which  are  presented  as  com- 
prising the  will  of  the  late  Mrs.  Helen  Annie  Madden,  I  have  felt  my- 
self at  liberty  to  come  as  I  do  to  the  conclusion  that  what  she  wrote 
on  those  sheets  was  all  written  at  the  same  time,  and  that  the  sheet 
now  pinned  in  front  was  written  last,  and  that  when  it  was  signed  the 
four  sheets  were  all  together  in  the  same  place  (see  Jarman  on  Wills 
[4th  Ed.]  p.  84;    Bond  v.  Seawell,  3  Burr.  1775).  The  character  of 
all  the  paper  is  the  same.     The  handwriting  is  the  same,  and  is  all 
uniform,  and  it  appears  to  have  been  all  written  with  the  same  ink. 
The  four  sheets  were  manifestly  written  to  constitute  a  will,  and  if 
the  sheet  now  pinned  in  front  be  placed  at  the  end,  the  four  sheets 
will  read  consecutively  as  constituting  a  perfectly  formal  will,  ready 
for  execution.     The  internal  evidence  which  the  will   affords  shows 
that  the  person  who  purports  to  be  the  writer  of  it  was  Mrs.  Helen 
A.  Madden,  and  it  is  proved  to  be  all  in  her  handwriting  by  the  af- 
fidavit of  Mr.  Richard  Owen  Armstrong. 

17  But  see  Irwin  v.  Jacques,  71  Ohio  St.  395,  73  N.  E.  683,  69  L.  R.  A.  422 
(1905),  where  the  testator  intended  a  clause  written  on  the  margin  to  be  a 
part  of  the  will,  and  indeed,  declined  to  sign  until  it  was  put  there,  and  yet, 
as  there  was  in  the  will  no  reference  "by  word  or  character"  to  the  marginal 
clause,  the  will  was  held  not  to  he  signed  at  the  end. 

18  The  statement  of  facts  is  omitted,  and  part  only  of  the  opinion  Is  given. 

CosT.WrLii&— 0 


130  LAST   WILLS   AND   TESTAMENTS.  (Part   1 

I  have  also  come  to  the  conclusion  that  when  the  four  sheets  were 
written  they  were  separate  and  unconnected.  It  will  be  observed  that 
the  writing  on  the  sheet  now  pinned  in  front  begins  with  a  formal 
attestation  clause,  commencing  with  the  words,  "Signed  by  me,  the 
said  Helen  A.  Madden,"  which  assists  the  conclusion  I  have  come  to, 
that  this  sheet  was  written  last.  I  would  be  quite  unable  to  come  to 
the  conclusion  that  when  writing  out  what  she  manifestly  intended  to 
constitute  her  will  she  began  with  this  attestation  clause,  which  I  re- 
gard as  referring  to  what  she  had  already  written.  A  will  may  con- 
sist of  several  separate  unconnected  sheets  of  paper.^®  It  is  not  dis- 
puted that  if  the  sheet  now  pinned  in  front  was  the  last  sheet  the  will 

19  "It  Is  well  established  that  a  will  may  be  made  up  of  separate  sheets 
of  paper,  and  they  need  not  be  fastened  together.  Wikoff's  App.  15  Pa.  291, 
53  Am.  Dec.  597;  Barnewall  v.  Murrell,  108  Ala.  36G,  18  South.  831;  Ela  v. 
Edwards,  16  Gray  (Mass.)  91;  Harp  v.  Parr,  168  111.  459,  48  N.  E.  113."  Deem- 
er,  J.,  in  Schillinger  v.  Bawek,  135  Iowa,  131,  138,  112  N.  W.  210,  213  (1907). 
See,  also,  Woodruff  v.  Hundley,  127  Ala.  640,  29  South.  98.  85  Am.  St.  Rep. 
145  (1900);  Matter  of  Snell,  32  Misc.  Rep.  (N.  Y.)  611,  67  N.  Y.  Supp.  581 
(1900)  ;  Matter  of  Fitzgerald,  33  Misc.  Rep.  325,  68  N.  Y.  Supp.  632  (1900), 
Yet  I3argrove  Deane,  J.,  has  stated  in  Lewis  v.  Lewis,  L.  R.  [1908]  P.  1,  5, 
that  all  the  sheets  must  be  attached  in  some  way  at  the  time  of  attestation. 

In  Palmer  v.  Owen,  229  111.  115,  117,  82  N.  E.  275,  276  (1907),  the  court  said: 

"Counsel  for  appellant  say  the  sheets  upon  which  the  will  was  written 
were  not  all  uniform  in  texture  and  finish,  and  from  this  circumstance,  and 
the  further  fact  that  the  witnesses  to  the  will  were  unable  to  identify  every 
sheet  of  it  as  being  the  same  paper  the  testator  signed  and  they  witnessed 
as  his  will,  it  is  contended  probate  should  have  been  denied,  because  they 
say  the  proof  does  not  show  that  the  instrument  sought  to  be  probated  is  the 
whole  instrument  acknowledged  and  executed  by  the  testator  as  his  will.  It 
Is  true,  as  counsel  contend,  that  it  is  possible,  where  a  will  is  written  on 
separate  sheets  of  paper,  loosely  fastened  together,  that  one  or  more  sheets 
might  be  removed  and  others  substituted  but  the  possibility  of  this  being 
done  is  not  sufficient  to  justify  denying  the  admission  of  a  will  to  probate. 
It  is  not  necessary  to  the  validity  of  a  will  that  it  should  be  all  written  on  one 
sheet  of  paper.  All  that  is  required  is  that  the  whole  will  shall  be  in  the 
presence  of  the  witnesses  when  attested  by  them.  Harp  v.  Parr,  168  III.  4.59, 
48  N.  E.  113.  Neither  is  it  required  that  the  witnesses  to  a  will  should  read 
It  or  examine  it  with  such  care  as  to  be  able,  upon  an  application  to  admit 
It  to  probate,  to  say  that  all  the  pages  or  clauses  of  the  propfSsod  will  were 
the  pages  and  clauses  signed  by  the  testator  and  attested  by  them.  It  Is  not 
renuired  that  the  subscribing  witnesses  shall  know  that  the  instrument  Is  a 
will.  Webster  v.  Yorty,  194  111.  408,  62  N.  E.  907.  The  proof  shows  the  tes- 
tator declared  to  the  witnesses  that  the  paper  was  his  will;  that  he  signed  It 
in  their  presence,  and  at  his  request  and  In  his  presence  they  each  attached 
their  signatures  to  It  as  witnesses.  This  was  a  compliance  with  the  require- 
ments of  the  law  and  entitled  the  will  to  be  admitted  to  probate,  In  the  ab- 
sence of  proof  of  'fraud,  compulsion  or  other  imprnper  conduct.'  in  the  ex- 
ecution of  the  will.  No  such  proof  was  made  in  this  case,  and  without  ad- 
verting further  to  the  testimony  it  is  sufllcient  to  say  that  we  have  read  it  all, 
and  there  is  no  evidence  in  this  record  that  would  have  justified  the  court  In 
denying  admission  of  the  will  to  probate." 

That  all  the  sheets  must  be  present  at  the  time  of  attestation,  see  akso  Gas.s' 
Heirs  v.  Gass'  Executors,  3  Humph.  (Tonn.)  278  (18-12).  That  the  attestation 
by  the  witnesses  must  he  on  the  same  sheet  of  paper  as  that  whicli  contains  the 
signature  of  the  testator,  or  on  some  paper  physically  cunnecled  with  that 
sheet,  see  In  re  Baldwin's  Will,  146  N.  C.  25,  59  S.  B.  163,  125  Am.  St.  Rep. 
466  (1907). 

On  wills  on  separate  sheets  of  paper,  see  13  Prob.  Rep.  Ann.  499,  note. 


Ch.  6)  EXECUTION   OF   WRITTEN   WILLS   AND   TESTAMENTS.  131 

was  duly  executed  pursuant  to  the  Wills  Act,  1  Vict.  c.  26,  as  amended 
by  the  Act,  15  Vict.  c.  24;  and  as  I  hold  that  the  sheet  now  pinned 
in  front  was  the  last  sheet  written,  and  therefore  was,  when  written, 
at  the  end  of  the  will,  it  would  not,  in  my  opinion,  have  ceased  to  be 
at  the  end  of  the  will  by  having  been  misplaced,  assuming  that  it  was 
pinned  in  front  at  the  time  it  was  signed.  Even  if,  therefore,  it  was 
pinned  in  front  when  signed,  such  misplacement  of  it  would  not  have 
prevented  it  from  continuing  to  be  in  fact  the  last  sheet,  and  the  ex- 
ecution of  the  will  under  those  circumstances  would  have  been  valid. 
But  there  is  no  proof  that  this  sheet  was  so  misplaced  when  signed. 

It  may  have  been  signed  before  the  sheets  were  pinned  together,  and 
there  are  also  evidences  that  their  present  attachment  by  the  pin  which 
now  connects  them  was  not  always  the  same. 

One  of  the  witnesses  (the  present  Archbishop  of  Dublin)  who  at- 
tested the  deceased's  signature  has  made  an  affidavit  in  which  he  states 
that  he  knew  it  was  necessary  to  sign  a  will  at  the  foot  or  end,  and 
that  he  would  not  have  knowingly  attested  a  will  signed  at  the  be- 
ginning; and  the  other  witness  to  the  deceased's  signature  (Mr. 
Greenwood  Pim)  has  made  an  affidavit  in  which  he  states  that  he 
knew  a  will  must  be  signed  at  the  end,  and  would  not  knowingly  at- 
test a  will  on  its  first  page;  even  in  the  absence,  therefore,  of  au- 
thorities, I  would  hold  that  this  will  was  duly  executed;  but  (amongst 
others)  the  case  of  Gregory  v.  Her  Majesty's  Proctor,  4  Notes  of 
Cases,  620  (which  recognizes  it  as  decided  that  all  the  papers  of 
which  a  will  consists  need  not  be  connected  together),  the  case  of  The 
Goods  of  Wotton,  3  P.  &  D.  159,  which  in  some  respects  is  similar  to 
the  present  case,  and  the  case  of  The  Goods  of  Jones,  4  Swa.  &  Tr. 
1,  cited  with  approval  in  The  Goods  of  Rice,  I.  R.  5  Eq.  176,  in  my 
opinion,  support  the  conclusions  I  have  come  to.^"    *     *     ♦ 


In  re  GOODS  OF  BIRT. 

(Court  of  Probate,  1871.     L.  R.  2  P.  &  D.  214.) 

Charles  Birt's  will  occupied  the  first  side  of  a  half  sheet  of  paper 
entirely,  and  was  executed  at  the  bottom  of  the  first  side.  In  the  will 
was  a  gift  of  four  cottages  to  his  wife  Elizabeth  Birt,  for  Hfe,  and  an 
incomplete  sentence  marked  by  an  asterisk  and  the  words:  "*See  over. 
C.  B."    At  the  top  of  the  second  side  of  the  half  sheet  of  paper  was 

20  The  court  then  declared  the  will  duly  executed,  and  directed  that  the 
will  should  be  so  set  forth  in  the  grant  of  letters  "that  what  is  written  on 
the  sheet  of  paper  now  pinned  in  front  thereof  shall  be  set  forth  as  at  the 
end  of  the  said  will." 

In  a  recent  case  the  second  and  fourth  pages  of  a  will  of  five  sheets  were 
interchanged,  the  pages  being  pinned  together  when  offered  for  probate,  but 
having  been  separate  when  the  will  was  executed,  and  the  will  was  held  profH 
erly  probated.     Sellards  v.  Kirby  (Kan.)  108  Pac.  73  (1910). 


IH2  LAST   WILLS   AND   TESTAMENTS.  (Part  1 

another  asterisk  and  the  words:  "See  over.*  C.  B." — and  a  gift  of 
the  cottages  at  the  wife's  decease  to  testator's  daughter.  This  clause 
on  the  second  side  of  the  sheet  was  not  seen  by  the  witnesses  when 
they  executed  the  will,  but  it  was  proved  to  have  been  written  before 
the  execution. 

A  motion  was  made  for  administration  with  the  will  annexed,  in- 
cluding the  words  written  on  the  back  of  the  will.  The  heir  at  law 
consented  to  the  grant.^^ 

Lord  Penzance.  As  the  heir  at  law,  the  only  person  interested  in 
excluding  the  words,  consents,  I  can  have  no  hesitation  in  making 
the  grant.  It  seems  to  be  the  better  course  to  look  upon  these  words 
as  an  mterlineation,  for  the  clause  without  them  would  be  unmeaning. 
The  testator,  at  the  end  of  the  unfinished  sentence,  has  put'  a  mark 
(*),  and  under  a  corresponding  mark  completes  the  sentence,  and 
he  did  this  before  the  will  was  executed.  He  clearly  intended  that 
the  words  should  be  introduced  where  he  made  the  first  mark.  By 
15  Vict.  c.  24,  §  1,  it  is  enacted  that  no  signature,  under  the  acts,  shall 
be  operative  to  give  effect  to  any  disposition  or  direction  which  is 
underneath,  or  which  follows  it;  but  I  think  that  these  words,  al- 
though, as  written,  they  follow  the  signature,  must  be  read  in  the 
place  in  which  the  testator  intended  they  should  be  read,  and  therefore 
preceding  the  signature. ^^ 


In  re  GOODS  OF  MALEN. 
(High  Court  of  Justice,  Probate  Division,  1885.    54  L.  J.  Prob.  91). 

William  Malen  died  at  Barkingside,  Essex,  on  the  9th  of  April, 
1885,  having  on  the  21st  of  November,  1882,  executed  a  will  upon  a 
printed  form. 

The  testator  handed  written  instructions  for  a  will  to  Harriett  Emily 
Edwards,  who  resided  in  the  same  house,  and  requested  her  to  copy 
them  upon  the  printed  form,  which  was  comprised  in  one  side  of  a 
sheet  of  paper,  and  included  an  attestation  clause  at  the  foot. 

The  said  H.  E.  Edwards  did  as  the  testator  requested ;  but  was 
unable  to  include  the  whole  will  on  one  page,  and  she  therefore  wrote 
the  concluding  words  of  the  will  at  the  top  of  the  second  page  of  the 
sheet.  The  first  page  ended  in  the  middle  of  a  sentence,  which  was 
completed  on  the  second  page. 

By  the  will  the  testator  appointed  his  son-in-law,  Samuel  Wright, 
sole  executor.  The  will  was  duly  attested,  the  signatures  of  the  tes- 
tator and  the  two  witnesses  being  written  below  the  attestation  clause 

«i  The  statement  of  facts  is  rewritten. 

12  See  David  S.  Baker's  Appeal.  107  Pa.  381,  52  Am.  Rep.  478  (1885).  But 
see  Matter  of  Whitney,  153  N.  Y.  259,  47  N.  E.  272,  60  Am.  St.  Rep.  616  (1SU7), 
and  cases  thore  cilrxl.  Compare  In  re  Schlegel's  Will,  62  Misc.  Rep.  439,  116 
N.  Y.  Supp.  1038  (1909). 


Ch.  6)  EXECUTION   OP   WRITTEN   WILLS   AND   TESTAMENTS.  133 

at  the  foot  of  the  first  page,  but  there  were  no  signatures  or  initials 
below  the  words  on  the  second  page. 

C.  A.  Middleton  moved  for  probate  of  the  whole  instrument.  Al- 
though 15  Vict.  c.  24,  §  1,  provides  that  no  signature  under  that  act 
or  the  Wills  Act,  1837,  "shall  be  operative  to  give  effect  to  any  dis- 
position or  direction  which  is  underneath  or  which  follows  it,"  words 
on  the  second  page  of  a  will  which  is  duly  signed  at  the  foot  of  the 
first  page  have  been  included  in  the  probate  as  interlineations  where 
the  court  has  been  satisfied  that  they  were  written  before  execution. 

Butt,  J.  In  In  re  Goods  of  Birt,  L.  R.  2  P.  &  D.  214,  the  as-^ 
terisk  and  the  words  "see  over"  preceded  the  testator's  signature, 
whereas  here  there  is  nothing  to  connect  the  signature  with  the  words 
on  the  second  page.  In  the  present  case  the  "disposition"  is  partly 
before  and  partly  after  the  signature,  and  therefore  the  proper  course 
will  be  to  exclude  the  words  on  the  second  page,  and  to  grant  pro- 
bate of  the  first  page  only.*' 


SECTION    4.— TESTATOR'S    ACKNOWLEDGMENT,    PUBLI- 
CATION, AND  REQUEST  TO  WITNESSES  TO  SIGN 


WHITE  v.  TRUSTEES  OF  BRITISH  MUSEUM. 

(Court  of  Common  Pleas,  1829.     6  Bing.  310.) 

TiNDAL,  C.  J.**  *  *  *  ^i^Q  objection,  therefore,  to  the  execu- 
tion of  the  present  will,  does  not  rest  upon  the  fact  that  it  was  not 
signed  by  W.  White  [the  testator,  who  died  May  13,  1823]  in  their 
[the  witnesses']  presence;  but  that  with  respect  to  two  of  the  witness- 
es, Hounslow  and  Bristow,  there  was  no  acknowledgment  of  his  sig- 
nature, nor  any  declaration  that  it  was  his  will;  but  that  they  signed 
their  names  in  entire  ignorance  of  the  nature  of  the  instrument,  or 
of  the  object  for  which  their  names  were  written.  And  it  is  argued, 
that  if  such  subscription  of  their  names  satisfies  the  intention  of  the 
statute  the  word  "attested"  -will  have  no  force  whatever,  and  may  be 
considered  as  if  it  had  never  been  inserted. 

28  See  Millward  v.  Buswell,  20  Times  Law  Reports,  714  (1904),  where  It 
was  held  that  the  first  page  of  a  will,  written  on  three  pages  of  paper  and 
signed  by  testatrix  and  her  witnesses  on  the  first  page  only,  ought  to  be  ad- 
mitted to  probate  without  the  other  pages.  For  similar  holdings  see  Royle  v. 
Harris,  [1S05]  P.  163;  In  the  Goods  of  Rebecca  Susan  Gilbert,  78  Law  Times 
(New  Series)  762  (1898);  In  the  Goods  of  William  Gee,  78  Law  Times  (New 
Series)  843  (1898);   In  the  Goods  of  Anstee.  [1.893]  P.  283. 

"But  it  is  entirely  clear  that  the  first  and  second  pages  of  the  paper,  with- 
out the  third,  did  not  constitute  the  last  will  of  the  decedent.  The  paper 
was  not  signed  at  'the  end  thereof  as  reouired  by  the  statute  to  make  a 
valid  will."     Day,  C.  J.,  in  Glancy  v.  Glancy,  17  Ohio  St.  134,  139  (1866). 

24  The  statement  of  facts  is  omitted,  and  part  only  of  the  opinion  is  given. 


134  LAST   WILLS   AND   TESTAMENTS.  (Part  1 

The  question,  however,  appears  to  us  to  be,  Whether,  upon  this 
special  verdict,  the  finding  of  the  jury  establishes,  although  not  an  ac- 
knowledgment in  words,  yet  an  acknowledgment  in  fact,  by  the  de- 
visor to  the  subscribing  witnesses,  that  this  instrument  was  his  will? 
for  if  by  what  the  devisor  has  done,  he  must,  in  common  understand- 
ing and  reasonable  construction,  be  taken  to  have  acknowledged  the 
instrument  to  be  his  will,  we  think  the  attestation  of  the  will  must  be 
considered  as  complete,  and  that  this  case  falls  within  the  principle 
and  authority  of  that  of  Ellis  v.  Smith  [1  Ves.  Jr.  11  (1754)].    *    *    * 

When,  therefore,  we  find  the  testator  knew  this  instrument  to  be  his 
will ;  that  he  produced  it  to  the  three  persons  and  asked  them  to  sign 
the  same ;  that  he  intended  them  to  sign  it  as  witnesses ;  that  they 
subscribed  their  names  in  his  presence,  and  returned  the  same  iden- 
tical instrument  to  him;  we  think  the  testator  did  acknowledge  in 
fact,  though  not  in  words,  to  the  three  witnesses,  that  the  will  was 
his.  For  whatever  might  have  been  the  doubt  upon  the  true  con- 
struction of  the  statute,  if  the  case  were  res  integra,  yet  as  the  law 
is  now  fully  settled,  that  the  testator  need  not  sign  his  name  in  the 
presence  of  the  witnesses,  but  that  a  bare  acknowledgment  of  his 
handwriting  is  a  sufficient  signature  to  make  their  attestation  and  sub- 
scription good  within  the  statute,  though  such  acknowledgment  con- 
veys no  intimation  whatever,  or  means  of  knowledge,  either  of  the 
nature  of  the  instrument,  or  the  object  of  the  signing;  we  think  the 
facts  of  the  present  case  place  the  testator  and  the  witnesses  in  the 
same  situation  as  they  stood  where  such  oral  acknowledgment  of  sig- 
nature has  been  made,  and  we  do  therefore,  upon  the  principle  of 
those  decisions,  hold  the  execution  of  the  will  in  question  to  be  good 
within  the  statute.    Judgment  for  defendants. 


In  re  CLAFLIN'S  WILL. 

'Supreme  Court  of  Vermont.    Orange,  1902.    75  Vt.  19,  52  Atl.  1053,  58  L.  R. 

A.  261.) 

RowELL,  C.  J.'"  *  *  *  A  more  important  question  arises  on 
the  charge  where  it  says  that  the  attesting  witnesses  must  have  been 
informed  and  have  known  that  it  was  Claflin's  will  that  they  were  then 
and  there  asked  to  witness  and  attest;  that,  if  he  concealed  from  them 
the  fact  that  it  was  his  will,  they  did  not  attest  his  will ;  that  it  was 
necessary  when  they  signed  the  will  as  witnesses  that  they  should 
know  they  were  signing  as  witnesses  to  his  will ;  that  they  must  have 
been  informed  of  that  in  some  way,  and  have  understood  it  when 
they  signed. 

It  appears  that  the  will,  including  the  attestation  clause,  was  writ- 
ten and  signed  by  the  testator;    that  he  superintended  its  execution, 

2  6  Part  only  of  the  opinion  is  given. 


Ch.  6)  EXECUTION   OF   WRITTEN   WILLS   AND   TESTAMENTS.  135 

and  that  the  attesting  witnesses  subscribed  it  at  his  request  and  in  his 
presence;  but  whether  in  the  presence  of  one  another  was  the  im- 
portant question. 

Under  statutes  like  ours,  which  provide  that  wills  must  be  "attested 
and  subscribed  by  three  or  more  credible  witnesses  in  the  presence  of 
the  testator  and  of  each  other,"  it  is  very  generally  held  in  this  coun- 
try that  the  witnesses  need  not  know  that  the  instrument  they  are  at- 
testing is  a  will,  because  such  statutes  are  construed  not  to  require 
it;   and  it  is  a  question  of  construction,  and  nothing  more. 

The  English  statute  of  frauds  (29  Car.  II,  c.  3,  §  5),  before  its  mod- 
ification by  1  Vict.  c.  26,  §  9,  required  wills  of  lands  and  tenements  to 
be  "attested  and  subscribed"  in  the  presence  of  the  testator  by  three 
or  four  credible  witnesses;  and  it  was  always  held  in  England  under 
that  statute  that  the  witnesses  need  not  know  that  the  instrument  was 
a  will. 

In  White  v.  Trustees  of  the  British  Museum,  6  Bing.  310,  only 
one  of  the  witnesses  knew  the  nature  of  the  instrument;  and  it  was 
argued  that,  if  such  a  subscription  of  their  names  satisfied  the  statute, 
the  word  "attested"  would  have  no  force  whatever,  and  might  as  well 
have  been  omitted.  But  the  court  said  the  question  was  whether  there 
was  an  acknowledgment  in  fact  by  the  testator  to  the  subscribing  wit- 
nesses, though  there  was  none  in  words,  that  the  instrument  was  his 
will ;  for  if,  it  said,  by  what  the  testator  did  he  must,  in  common  un- 
derstanding and  reasonable  construction,  be  taken  to  have  acknowl- 
edged the  instrument  to  be  his  will,  the  attestation  thereof  must  be 
considered  as  complete,  within  the  principle  and  authority  of  Ellis  v. 
Smith,  1  Ves.  Jr.  11,  decided  in  1754.  And  it  appearing  that  the 
testator  knew  the  instrument  to  be  his  will,  as  it  was  written  and 
signed  by  him;  that  he  produced  it  to  the  three  persons,  and  asked 
them  to  sign  it,  intending  they  should  sign  it  as  witnesses ;  that  they 
subscribed  their  names  thereto  in  his  presence,  and  returned  the  same 
identical  paper  to  him, — it  was  held  that  he  acknowledged  in  fact  to 
the  witnesses,  though  not  in  words,  that  the  instrument  was  his  will, 
and  that  its  execution  was  good  under  the  statute;  for,  the  court 
said,  whatever  might  have  been  the  doubt  as  to  the  true  construc- 
tion of  the  statute,  the  law  was  then  fully  settled  that  the  testator  need 
not  sign  his  name  in  the  presence  of  the  witnesses,  but  that  a  bare 
acknowledgment  of  his  handwriting  is  a  sufficient  signature  to  make 
their  attestation  and  subscription  good  within  the  statute,  though  such 
acknowledgment  conveys  no  intimation  whatever,  nor  means  of  knowl- 
edge, either  of  the  nature  of  the  instrument  or  the  testator's  object 
in  signing  it;  and  that  the  facts  of  that  case  placed  the  testator  and 
the  witnesses  in  the  same  relation  as  though  an  oral  acknowltdgment 
of  his  signature  had  been  made. 

The  same  thing  is  held  in  Wright  v.  Wright,  7  Bing.  457.    In  Trim- 
mer V.  Jackson,  4  Burn,  Ecc.  Law   (3d  Ed.)  102,  a  will  was  estab- 


136  LAST   WILLS   AND   TESTAMENTS.  (Part  1 

lished  where  the  testator  purposely  misled  the  witnesses  into  sup- 
posing that  it  was  a  deed. 

In  Massachusetts  they  hold  as  they  do  in  England,  under  a  statute 
!ike  ours  in  this  respect.  Thus,  in  Osborn  v.  Cook,  11  Cush.  532,  59 
Am.  Dec.  155,  the  testator  signed  the  instrument  in  the  presence  of 
two  of  the  witnesses,  and  pointed  out  his  signature  to  the  third  wit- 
ness, and  each  of  the  witnesses  signed  the  instrument  as  a  witness 
in  the  presence  of  the  testator  and  at  his  request;  but  the  testator 
did  not  disclose  to  any  of  the  witnesses  that  it  was  his  will,  nor  did 
any  of  them  know  or  suspect  the  nature  of  the  instrument,  and  yet 
it  was  held  well  executed.  The  court  said  that  calling  on  the  wit- 
nesses to  attest  his  execution  of  an  instrument,  the  character  and  con- 
tents of  which  he  well  knew,  was,  in  effect,  a  declaration  that  the  in- 
strument he  had  signed,  and  his  signature  to  which  he  desired  them  to 
attest,  was  his  act,  though  the  character  of  the  instrument  was  not 
disclosed  to  them ;  that  it  was  as  if  the  testator  had  said :  "This  in- 
strument is  my  act.  It  expresses  my  wish  and  purpose,  and,  though 
I  do  not  tell  you  what  it  is,  I  desire  you  to  attest  that  it  is  my  act, 
and  that  I  have  executed  and  recognized  it  as  such  in  your  presence ;" 
that  the  legislature  had  prescribed  certain  solemnities  to  be  observed 
in  the  execution*  of  a  will  that  it  may  be  seen  that  it  is  the  free,  con- 
scious, intelligent,  act  of  the  maker,  but  that  it  had  not  prescribed 
that  he  should  publish  to  the  world  nor  to  the  witnesses  what  is  in 
the  will,  nor  even  that  it  is  a  will. 

Connecticut  holds  the  same  way,  where  the  statute  requires  a  will 
to  be  ill  writing,  subscribed  by  the  testator,  and  attested  by  three  wit- 
nesses, all  of  them  subscribing  in  his  presence  and  in  the  presence  of 
each  other.  Appeal  of  Canada,  47  Conn.  450.  It  is  there  said  that 
the  primary  reason  for  requiring  the  presence  of  the  witness  is  that 
he  should  be  able  to  say  that  the  testator  put  his  name  upon  the  iden- 
tical piece  of  paper  upon  which  he  put  his  own ;  that  the  witness  iden- 
tifies the  paper  by  the  conjunction  of  the  two  signatures,  not  by  the 
character  of  its  contents.  Allen  v.  Griffin,  69  Wis.  529,  35  N.  W.  21, 
is  to  the  same  effect. 

In  Re  Hulse's  Will,  52  Iowa,  662,  3  N.  W.  734,  the  same  is  held. 
There  the  statute  requires  a  will  to  be  witnessed  by  two  competent 
witnesses.  The  court  said  that  to  witness  means  "to  see  the  execu- 
tion of  an  instrument,  and  to  subscribe  it  for  the  purpose  of  estab- 
lishing its  authenticity,"  and  referred  to  the  English  statute  of  frauds 
as  containing  a  similar  provision,  and  said  it  had  been  construed  as 
not  requiring  publication  in  the  sense  of  acquainting  the  witnesses 
with  the  nature  of  the  instrument. 

In  Watson  v.  Pipes,  32  Miss.  451,  the  same  is  held  under  a  statute 
taken  from  29  Car.  II.  The  court  said  that  such  seemed  to  be  the 
holding  in  all  the  states  in  which  the  provisions  of  the  English  stat- 
ute in  regard  to  wills  have  been  adopted;   that  the  rule  is  based  upon 


Ch.  6)  EXECUTION   OF   WRITTEN   WILLS   AND   TESTAMENTS.  137 

the  plain  and  obvious  construction  of  the  statute,  which  it  did  not 
hesitate  to  adopt. 

The  Alabama  Code  requires  wills  to  be  "attested  by  at  least  two  wit- 
nesses, who  must  subscribe  their  names  thereto  in  the  presence  of 
the  testator."  The  predecessor  of  this  statute  was  borrowed  from  29 
Car.  II,  c.  3,  §  5.  In  Barnewall  v.  Murrell,  108  Ala.  366,  18  South. 
831,  the  court  said  that,  as  the  statute  did  not  require  the  testator  to 
inform  the  attesting  witnesses  that  the  instrument  was  his  will,  it 
was  immaterial  to  the  due  execution  of  the  will  in  that  case  whether 
the  testatrix  made  any  declaration  to  the  attesting  witnesses,  or  gave 
them  any  notice  or  information,  that  the  instrument  was  her  will. 

In  Schouler,  Wills  (3d  Ed.)  §  326,  it  is  said  to  be  the  long-estab- 
lished doctrine,  both  of  England  and  the  United  States,  that,  inde- 
pendently of  an  express  statute  requiring  publication,  a  will  may  be 
duly  executed  without  any  formal  announcement  by  the  testator  of 
a  testamentary  purpose,  and  without  anything  being  said  by  him  tc 
show  the  nature  of  the  instrument  the  witnesses  are  called  upon  tf 
subscribe;  that  the  maker's  signature  animo  testandi,  and  his  propei 
acknowledgment,  showing  that  he  has  put  his  name  bona  fide  upon 
the  paper  that  he  desires  witnessed,  when  he  has  not  signed  in  thei' 
presence,  renders  the  execution  valid  in  general,  without  any  other 
or  more  formal  execution;  and  that  the  signature  of  the  witnesse; 
being  duly  affixed,  the  act  of  execution  becomes  complete. 

In  Missouri,  under  a  statute  that  is  almost  an  exact  transcript  of 
29  Car.  II,  c.  3,  §  5,  they  hold  that  there  must  be  some  declaration 
by  the  testator  that  the  paper  is  his  will;  but  that  it  need  not  be 
verbal,^-that  an  act  or  a  sign  is  enough ;  but  that  the  witnesses  must 
know  it  is  the  will  of  the  testator,  and  witness  it  at  his  request.  Oden- 
waelder  v.  Schorr,  8  Mo.  App.  158.  In  support  of  this  construction 
of  the  statute,  Mundy  v.  Mundy,  15  N.  J.  Eq.  290,  is  referred  to. 
But  that  case  was  decided  under  a  statute  that  expressly  required 
th.at  the  instrument  should  be  "declared  to  be"  the  last  will  and  testa- 
ment of  the  testator;   so  no  authority  for  the  holding. 

The  contestants  rely  much  upon  Swift  v.  Wiley,  1  B.  Mon.  (Ky.) 
114,  where  it  is  said  that  to  attest  the  publication  of  a  paper  as  a  will, 
and  to  subscribe  thereto  the  names  of  the  witnesses,  are  very  dif- 
ferent things,  and  required  for  different  ends;  that  attestation  is  an 
act  of  the  mind,  subscription  an  act  of  the  hand;  that  to  attest  a  will 
is  to  know  that  it  is  published  as  such,  but  to  subscribe  it  is  only  to 
write  on  the  paper  the  names  of  the  witnesses  for  the  sole  purpose  of 
identification.  But  this  case  is  of  little  worth,  for  Flood  v.  Pragoff, 
79  Ky.  607,  expressly  decides  that  it  is  not  necessary  that  the  witnesses 
should  know  the  nature  of  the  instrument,  and  says  that  the  ques- 
tion never  before  arose  in  that  state ;  and  it  hardly  could  have  arisen 
in  Swift  V.  Wiley,  for  there  was  a  publication  there  by  the  testator, 
at  which  the  witnesses  were  present.     It  is  said  in  Flood  v.  Pragoff 


138  LAST  WILLS   AND   TESTAMENTS.  (Part  1 

that  the  Legislature  had  prescribed  such  formalities  for  the  execu- 
tion of  wills  as  it  thought  proper,  and  that  the  court  ought  not  to 
add  to  them  by  construction,  especially  when  the  efficacy  of  the  con- 
structive requirement  depended  solely  upon  the  memory  of  the  sub- 
scribing witnesses. 

Illinois  and  Wisconsin  repudiate  the  idea  that  there  is  any  differ- 
ence between  attesting  and  subscribing  a  will.  Drury  v.  Connell,  177 
111.  43,  52  N.  E.  368;  Sloan  v.  Sloan,  184  111.  579,  56  N.  E.  952;  Skin- 
ner V.  Society,  92  Wis.  209,  65  N.  W.  1037. 

Dr.  Lushington  said  in  Bryan  v.  White,  2  Rob.  Ecc.  315,  that  he 
felt  no  difficulty  in  answering  the  question,  what  is  the  meaning  of 
"shall  attest"?  that  attest  means  that  the  person  shall  be  present  and 
see  what  passes,  and  shall,  when  required,  bear  witness  to  the  facts. 
Lord  Chancellor  Selborne  said  in  Seal  v.  Claridge  (1881)  50  Law  J. 
316,  that:  "Surely  the  very  words  'ad  testari'  imply  the  presence  of 
a  witness  standing  by,  who  is  not  a  party  to  the  deed  to  be  witnessed." 
Other  English  cases  say  that  to  attest  an  instrument  is  not  merely  to 
subscribe  one's  name  to  it  as  having  been  present  at  its  execution,  but 
includes  also,  essentially,  the  presence  in  fact  at  its  execution  of  some 
disinterested  person  capable  of  giving  evidence  of  what  took  place. 
Roberts  v.  Phillips  (1855)  4  El.  &  Bl.  450;  Ford  v.  Kettle  (1882) 
9  Q.  B.  Div.  139.  Dr.  Lushington  somewhere  illustrates  that  as  a 
notary,  by  his  attestation  of  protest,  bears  witness,  not  to  the  state- 
ments in  the  protest,  but  to  the  fact  of  making  those  statements,  so 
the  witnesses  to  a  will  bear  witness  to  all  the  statute  requires  attest- 
ing witnesses  to  attest,  namely,  that  the  signature  was  made  or  ac- 
knowledged in  their  presence. 

Judge  Redfield,  both  in  his  work  and  his  cases  on  Wills,  strenu- 
ously contends  that  the  witnesses  must  know  the  nature  of  the  instru- 
ment ;  otherwise,  he  asks,  what  becomes  of  all  that  is  said  about  the 
great  solemnity  the  law  attaches  to  the  formal  execution  of  wills,  and 
how  are  the  witnesses  charged  with  the  duty  of  seeing  that  the  tes- 
tator is  of  sound  mind  before  they  consent  to  attest  the  instrument, 
which,  it  is  sometimes  said,  commits  them  to  having  attested  that  fact 
as  well  as  the  formal  signature  of  the  testator? 

As  to  the  "solemnity,"  the  formal  execution  of  wills  being  mere 
matter  of  statutory  requirement,  whatever  has  been  said  about  it 
dehors  the  statute  goes  for  nothing.  As  to  the  witnesses  being 
charged  with  the  duty  of  seeing  that  the  testator  is  of  sound  mind, 
the  statute  does  not  thus  charge  them,  unless  by  the  word  "attested" ; 
and.  if  that  word  charges  that  duty,  it  must,  it  would  seem,  charge 
the  further  duty  of  seeing  that  he  is  of  full  age,  for  that  is  as  essen- 
tial under  our  statute  as  a  sound  mind.  But  the  word  "attested"  does 
not  charge  the  duty  claimed,  as  is  shown  by  Thornton's  Ex'rs  v. 
Thornton's  Heirs,  above  cited.  There  it  was  contended  that  the 
weight  to  be  given  to  the  testimony  of  an  attesting  witness  to  a  will 


Ch.  6)  EXECUTION   OF  WRITTEN   WILLS  AND  TESTAMENTS.  139 

is  matter  of  law,  and  that,  therefore,  the  trial  court  was  bound  to 
charge,  as  requested,  that  such  testimony  is  "entitled  to  much  consid- 
eration on  the  question  of  capacity."  But  this  court  said  that  the  law 
gives  no  weight  to  the  testimony  of  such  a  witness  beyond  what  it 
would  be  entitled  to  under  the  conditions  that  usually  govern  the  value 
of  testimony;  that  the  prominence  given  to  such  testimony  in  opin- 
ions where  both  law  and  fact  are  discussed,  arises  from  the  witness' 
acknowledged  opportunity  for  observation  at  the  precise  time  in 
question,  and  from  the  probability  of  his  having  used  the  opportunity 
on  account  of  his  participation  in  the  transaction;  that  it  is  because 
of  his  opportunity,  not  because  he  wrote  his  name  on  the  instrument, 
that  his  testimony  is  usually  listened  to  with  attention ;  but  that  the 
law  attaches  no  fictitious  official  weight  to  the  testimony,  so  as  to 
pass  it  for  more  than  it  is  worth,  but  that  its  value  is  to  be  determined 
by  the  rules  applicable  to  other  testimony. 

In  Dean  v.  Dean's  Heirs,  27  Vt.  746,  it  is  said  that  attesting  a  will 
by  the  witnesses  is  an  attestation  of  its  publication;  that  a  formal 
publication  is  not  necessary;  that  writing  and  signing  a  will  is  suffi- 
cient publication ;  indeed,  that  any  act  of  the  testator's  by  which  he 
designates  that  he  means  to  give  efifect  to  the  paper  as  his  will,  is  a 
publication  of  the  will  itself.  Nothing  in  this,  except  the  words  "as 
his  will,"  indicates  that  the  publication  must  be  such  as  to  inform  the 
witnesses  of  the  testamentary  character  of  the  instrument.  And  these 
evidently  do  not  mean  that,  for  it  had  just  been  said  that  writing  and 
signing  the  will  was  a  sufficient  publication,  and  that  suggests  no  such 
idea.  They  mean  no  more  than  is  said  in  Roberts  v.  Welch,  46  Vt. 
164,  that  a  declaration  by  the  testator  to  the  witnesses  that  it  is  his 
will  or  his  instrument  is  enough.  Otherwise  the  court  was  running 
counter  to  the  established  construction  of  29  Car.  II,  concerning  which 
the  court  had  a  few  years  before  said  in  Adams  v.  Field,  21  Vt.  266, 
that  "when  our  statute  of  wills  was  enacted  that  statute  of  29  Car.  II 
had  received  a  long-fixed  and  well-known  construction ;  and  when  we 
adopt  an  English  statute  we  take  it  with  the  construction  that  it  has 
received,  on  the  ground  that  this  was  the  implied  intention  of  the 
Legislature." 

But  it  is  proper  to  remark  in  this  connection  that  what  is  said  in 
Dean  v.  Dean's  Heirs  is  entirely  obiter,  as  the  only  question  was 
whether  the  testimony  warranted  the  finding  that  the  will  was  exe- 
cuted by  the  testator  in  the  presence  of  the  witnesses,  and  subscribed 
by  them  in  his  presence  and  in  the  presence  of  each  other. 

In  Roberts  v.  Welch,  46  Vt.  164,  one  of  the  witnesses  did  not  know 
that  the  testator  had  signed  the  paper  at  all,  nor  what  the  paper  was, 
nor  for  what  purpose  he  himself  was  signing  it.  The  court  said  that, 
although  it  was  not  necessary  for  the  testator  to  sign  in  the  presence 
of  the  witnesses,  but  that  a  declaration  to  the  witnesses  that  it  was  his 
will  or  his  instrument  would  be  enough,  yet  that  the  witnesses  must 


140  LAST   WILLS   AND   TESTAMENTS.  (Part  1 

know  that  by  affixing  their  names  to  the  instrument  they  were  attest- 
ing its  execution  by  the  testator ;  that  a  person,  to  become  an  attest- 
ing witness,  must  be  aware  of  the  character  of  the  act  he  is  cahed 
upon  to  perform,  and  must  subscribe  his  name  animo  testari.  As 
nothing  is  said  about  the  fact  that  the  witness  did  not  know  the  char- 
acter of  the  instrument,  it  is  manifest  that  the  court  did  not  regard 
it  essential  that  he  should  know  it,  but  only  that  he  should  know  the 
character  of  his  own  act,  and  to  that  end  should  know  that  the  testa- 
tor had  signed  the  paper.  This  gives  force  to  thg  word  "attested"  in 
the  statute,  and  makes  it  more  than  "subscribed" ;  makes  it  a  mental 
act,  but  applies  it  in  essentiality  only  to  the  execution  of  the  instru- 
ment, not  to  a  knowledge  of  its  character. 

But  it  is  claimed  that  in  this  very  case,  when  it  was  here  before  (73 
Vt.  129,  50  Atl.  815,  87  Am.  St.  Rep.  693),  we  said  the  witnesses  must 
know  the  character  of  the  instrument.  The  language  most  relied 
upon  in  support  of  the  claim  is  this :  "Nor  was  it  necessary  to  show 
by  the  attesting  witnesses  that  at  the  time  they  signed  they  knew 
they  were  signing  the  testator's  will.  This  fact,  though  necessary 
(Roberts  v.  Welch,  46  Vt.  164),  may  be  shown  by  other  witnesses,  or 
\\  may  be  inferred  from  the  circumstances."  This  language,  when 
ti-ken  in  connection  with  the  case  to  which  it  refers  and  the  context, 
does  not  mean,  we  think,  what  is  claimed  for  it.  The  case  referred 
to,  as  we  have  seen,  does  not  require  that  the  witnesses  must  know 
that  the  instrument  is  the  testator's  will,  but  only  that  it  is  his  instru- 
ment, and  that  by  affixing  their  names  to  it  they  are  attesting  its  ex- 
ecution as  such  by  the  testator. 

And  when  we  look  at  the  context  we  see  that  no  more  was  meant, 
for  therein  the  court  had  said  that  writing  and  signing  the  will  and 
superintending  its  execution  was  a  sufficient  publication  by  the  testa- 
tor, and  that  in  attesting  it  the  witness  attested  its  publication;  and 
therewith  agree  the  cases.  But  here  is  no  intimation  that  the  wit- 
nesses must  know  the  character  of  the  instrument.  And  the  quotation 
from  Ilott  V.  Genge,  3  Curt.  Ecc.  181,  is  to  the  same  effect,  for,  al- 
though it  says  that  when  a  testator  writes  the  will  himself,  and  signs 
it,  and  produces  it  to  the  witnesses,  and  desires  them  to  sign  their 
names,  that  amounts  to  an  acknowledgment  on  his  part  that  the  paper 
signed  by  them  is  his  will ;  yet  this  is  not  saying  that  the  witnesses 
thereby  know  it  to  be  his  will,  but  only  that  he  himself  knows  it.  That 
case  arose  under  the  statute  of  1  Vict.,  under  which  it  had  always  been 
held  that,  when  the  signature  of  the  testator  is  seen  or  expressly  ac- 
knowledged, it  is  not  material  that  the  witnesses  are  not  told  that  the 
instrument  is  a  will. 

We  hold,  therefore,  that  our  statute  does  not  require  that  the  at- 
cesting  witnesses  to  a  will  shall  know  the  nature  of  the  instrument. 

It  appeared  that  the  witnesses  were  in  the  store  of  one  of  them 
when  they  signed,  but  it  did  not  appear  how  large  the  room  was,  ex- 


Ch.  6)  EXECUTION   OF   WRITTEN   WILLS   AND   TESTAMENTS.  141 

cept  that  it  was  a  country  general  store.  The  jury  asked  if  it  was 
enough  that  the  witnesses  were  in  the  same  room.  The  court  replied 
that  merely  being  in  the  same  room  was  not  enough ;  the  room  might 
have  been  so  large;  that  the  witnesses  must  have  been  together  in 
the  presence  of  one  another  in  such  a  way  and  in  such  a  sense  that 
they  could  see  one  another  sign,  whether  they  actually  looked  and  saw 
or  not;  that  they  must  have  been  right  there  where  they  could  see 
one  another  sign.  This  is  in  substantial  accord  with  Blanchard's 
Heirs  v.  Blanchard's  Heirs,  33  Vt.  62,  and  so  no  error.  Reversed  and 
remanded.^* 


In   re  MACKAY'S   WILL. 

(Court  of  Appeals  of  New  York,  1888.    110  N.  Y.  611,  18  N.  E.  433,  1  L.  R.  A. 

491,  6  Am.  St.  Rep.  409.) 

Earl,  J.  The  subscribing  witnesses  came  to  the  dwelling-house  of 
the  deceased  by  previous  appointment,  and,  while  seated  at  his  writ- 
ing-desk, he  said  to  them :  "Gentlemen,  what  I  sent  for  you  for  was 
to  sign  my  last  will  and  testament."  Thereupon  he  took  from  his 
writing-desk  the  instrument  offered  for  probate,  and,  laying  it  before 
the  witnesses,  said :  "It  is  now  all  ready,  awaiting  your  signatures." 
He  then  presented  the  instrument  to  the  witness  McCarrier  for  his 
signature,  and  he  signed  it,  saying,  as  he  did  so,  "I  am  glad.  Father 
Mackay,  you  are  making  your  will  at  this  time;  I  don't  suppose  it 
will  shorten  your  life  any,"  to  which  he  replied,  "Yes,  he  wanted  it 
done,  and  off  his  mind ;"  and  then  the  witness  Mulligan,  who  had 
joined  in  this  conversation,  signed  the  instrument,  as  a  witness.  At 
the  time  of  exhibiting  the  instrument  to  the  subscribing  witnesses  he 
told  them  it  was  his  will ;  but  he  handed  it  to  them  so  folded  that  they 
could  see  no  part  of  the  writing  except  the  attestation  clause,  and  they 
did  not  see  either  his  signature  or  seal. 

26  See  Gould  v.  Chicago  Theological  Seminary,  189  111.  282,  59  N.  E.  586 
(1901).  Under  some  state  statutes  it  is  required  that  the  testator  declare  to 
the  witnesses  that  the  instrument  they  are  asked  to  witness  is  his  will.  See 
3  Am.  Prob.  Rep.  247,  note.  In  New  York,  where  such  is  the  case,  the  fact 
that  the  will  is  in  the  handwriting  of  the  testator  may  be  important.  "The 
fact  that  the  entire  will  was  in  the  handwriting  of  the  testator  is  also  a  most 
significant  and  convincing  fact,  especially  as  bearing  on  the  question  as  to 
whether  the  testator  declared  the  instrument  to  be  his  will.  In  considering 
the  object  of  requiring  this  declaration,  the  Court  of  Appeals  has  said:  'That 
purpose  is  to  make  sure  that  the  testator  is  aware  that  he  is  making  a  will, 
and  that  he  be  not  imposed  on  and  procured  to  sign  a  will  when  he  supposes 
it  to  be  some  other  instrument.  The  witnesses'  knowing  it  to  be  a  will  is 
of  no  moment,  except  as  to  their  being  then  and  there  in  his  presence  or  by  him 
told  so,  makes  it  certain  that  he  knew  it  to  be  such  an  instrument.'  Trustees 
V.  Calhoun,  25  N.  Y.  422^55.  It  is,  therefore,  impossible  for  a  testator  to  be 
deceived  or  imposed  uiwn  as  to  the  character  of  the  instrument  he  is  execut- 
ing, when  he  has  himself  written  it,  and  in  addition  declared  it  to  be  his  last 
will  and  testament."  Marcus,  S.,  in  Matter  of  Moore,  46  Misc.  itep.  537,  540, 
541.  9.^)  N.  Y.  Supp.  61.  64  (1005). 


142  LAST   WILLS   AND   TESTAMENTS.  (Part   1 

There  would  undoubtedly  have  been  a  formal  execution  of  the 
will  in  compliance  with  the  statutes,  if  the  witnesses  had  at  the  time 
seen  the  signature  of  the  testator  to  the  will.  Subscribing  witnesses 
to  a  will  are  required  by  law,  for  the  purpose  of  attesting  and  identi- 
fying the  signature  of  the  testator,  and  that  they  cannot  do  unless  at 
the  time  of  the  attestation  they  see  it.  And  so  it  has  been  held  in 
this  court.  In  Lewis  v.  Lewis,  11  N.  Y.  221,  where  the  alleged  will 
was  not  subscribed  by  the  testator  in  the  presence  of  the  witnesses, 
and  when  they  signed  their  names  to  it  it  was  so  folded  that  they 
could  not  see  whether  it  was  signed  by  him  or  not,  and  the  only  ac- 
knowledgment or  declaration  made  by  him  to  them,  or  in  their  pres- 
ence, as  to  the  instrument,  was,  "I  declare  the  within  to  be  my  will 
and  deed,"  it  was  held  that  this  was  not  a  sufficient  acknowledgment 
of  his  subscription  to  the  witnesses  within  the  statute.  In  that  case 
Allen,  J.,  writing  the  opinion,  said:  "A  signature  neither  seen,  iden- 
tified, or  in  any  manner  referred  to  as  a  separate  and  distinct  thing, 
cannot  in  any  just  sense  be  said  to  be  acknowledged  by  a  reference  to 
the  entire  instrument  by  name  to  which  the  signature  may  or  may  not 
be  at  the  time  subscribed."  In  Mitchell  v.  Mitchell,  16  Hun,  97,  af- 
firmed in  this  court  in  77  N.  Y.  596,  the  deceased  came  into  a  store 
where  two  persons  were,  and  produced  a  paper,  and  said:  "I  have  a 
paper  which  I  want  you  to  sign."  One  of  the  persons  took  the  paper, 
and  saw  what  it  was  and  the  signature  of  the  deceased.  The  testator 
then  said :  "This  is  my  will ;  I  want  you  to  witness  it."  Both  of  the 
persons  thereupon  signed  the  paper  as  witnesses,  under  the  attestation 
clause.  The  deceased  then  took  the  paper,  and  said:  "I  declare  this 
to  be  my  last  will  and  testament,"  and  delivered  it  to  one  of  the  wit- 
nesses for  safe-keeping.  At  the  time  when  this  took  place  the'  paper 
had  the  name  of  the  deceased  at  the  end  thereof.  It  was  held  that 
the  will  was  not  properly  executed,  for  the  reason  that  one  of  the  wit- 
nesses did  not  see  the  testator's  signature,  and  as  to  that  witness  there 
was  not  a  'sufficient  acknowledgment  of  the  signature  or  a  proper 
attestation. 

It  is  true  that  in  Willis  v.  Mott,  36  N.  Y.  486,  491,  Davies,  C.  J., 
writing  the  opinion  of  the  court,  said  that  "the  statute  does  not  re- 
quire that  the  testator  shall  exhibit  his  subscription  to  the  will  at  the 
time  he  makes  the  acknowledgment.  It  would  therefore  follow  that 
when  the  subscription  is  acknowledged  to  an  attesting  witness  it  is 
not  essential  that  the  signature  be  exhibited  to  the  witness."  This  is 
a  mere  dictum,  unnecessary  to  the  decision  in  that  case,  and  therefore 
cannot  have  weight  as  authority.  The  formalities  prescribed  by  the 
statute  are  safeguards  thrown  around  the  testator  to  prevent  fraud 
and  imposition.  To  this  end  the  witnesses  should  either  see  the  testa- 
tor subscribe  his  name,  or  he  should,  the  signature  being  visible  to 
him  and  to  them,  acknowledge  it  to  be  his  signature.  Otherwise  im- 
position might  be  possible,  and  sometimes  the  purpose  of  the  statute 
might  be  frustrated. 


Ch.  6)  EXECUTION  OF  WRITTEN  WILLS  AND  TESTAMENTS.  ,       143 

We  think,  therefore,  that  probate  of  the  will  was  properly  refused, 
and  that  the  judgment  below  should  be  affirmed,  without  costs.  All 
concur.^^ 


In  re  KARRER'S  WILL. 

(Surrogate's  Court,  Kings  County,  1909.     63  Misc.  Rep.  174,  118  N.  T.  Supp. 

427.) 

In  the  matter  of  the  last  will  of  Margaret  Karrer,  deceased.  Pro- 
ceeding for  probate  of  will.     Probate  decreed. 

Ketcham,  S."*  The  paper  offered  for  probate  was  signed  by  the 
testatrix  and  by  the  witnesses  with  such  copious  disregard  of  the 
statutory  requirements  that  its  invalidity  would  have  to  be  confessed, 
were  it  not  that,  immediately  thereafter  and  upon  a  separate  occasion, 
the  witnesses  were  brought  into  the  presence  of  the  testatrix,  and  the 
testatrix  acknowledged  her  subscription  thereto  in  the  presence  of 
each  of  the  attesting  witnesses,  declared  the  instrument  to  be  her  last 
will  and  testament,  and  requested  the  witnesses  to  attest  her  act ;  and 
the  witnesses,  with  the  knowledge  of  the  testatrix,  reaffirmed  their 
previous  signatures  without   further  writing.    Upon  this  second  at- 

27  See  In  re  Goods  of  Mary  Gunstan,  L.  R.  7  P.  D.  102.  "The  question  has 
sometimes  arisen  whether,  under  a  local  statute  or  code,  the  requirement  is 
that  the  testator  acknowledge  the  signature  to  the  will  to  be  his  act  and  deed, 
or  that  he  acknowledge  the  will  to  be  his  act  and  deed.  In  England,  the  stat- 
ute of  1  Vict,  upon  the  subject  requires  the  signature  of  the  testator  to  be 
made  or  acknowledged.  1  Jarm.  Wills,  marg.  pp.  S3,  84.  In  New  York,  and 
perhaps  in  some  of  the  other  states,  the  statute  requires  that  there  must  be 
an  acknowledgment  of  the  signature.  Schouler,  Wills  (2d  Ed.)  §  325.  Deci- 
sions based  upon  these  statutes  have  held,  in  substance,  that  there  is  not  a 
sufficient  acknowledgment  of  the  signature  by  the  testator  when  he  produces 
a  will,  and  requests  the  witnesses  to  sign  it,  unless  his  signature  is  visibly  ap- 
parent on  the  face  of  the  paper,  and  is  seen,  or  can  be  seen  by  the  witnesses,  es- 
pecially if  he  does  not  explain  the  instrument  to  them.  Schouler,  Wills  (2d 
Ed.)  §§  321-325;  1  Williams,  Ex'rs,  marg.  p.  88;  1  Jarm.  Wills  (Bigelow's  6th 
Ed.)  marg.  p.  84.  But  we  are  inclined  to  think  that  these  decisions  are  not  ap- 
plicable where  the  statute,  as  is  the  case  with  that  in  this  state,  merely  requires 
that  the  testator  acknowledge  the  will  or  codicil  to  be  his  act  and  deed,  and  does 
not  siiecifically  and  in  terms  require  the  signature  to  be  acknowledged.  A 
man  may  acknowledge  an  entire  written  instrument  to  be  his  act  and  deed, 
without  necessarily  calling  the  attention  of  those  before  whom  he  produces 
it  to  any  particular  part  of  such  instrument.  But,  if  he  is  required  to  make 
acknowledgment  of  a  specified  part  of  it,  it  may  be  requisite  that  attention 
should  be  directed  to  that  part."  Magruder,  J.,  in  Hobart  v.  Hobart,  154  111. 
610,  616,  39  N.  E.  581,  583,  45  Am.  St.  Rep.  151  (1895).  If  the  signature  is  visi- 
ble, it  is  acknowledged,  even  though  the  testator  merely  asks  the  witnesses 
to  subscribe  as  witnesses.  Daintree  v.  Fasulo,  13  P.  D.  67  (1888).  This  last 
case  also  holds  that  under  the  Wills  Act,  as  under  the  Statute  of  Frauds, 
the  witnesses  need  not  be  told  nor  know  that  they  are  witnessing  a  will.  In 
Haynes  v.  Haynes,  33  Ohio  St.  598,  31  Am.  Rep.  579  (1878),  it  was  held  that 
under  the  Ohio  statute  a  testator  must  acknowledge  to  the  witnesses  the  sig- 
nature made  for  him  by  another  person  in  his  presence  and  by  his  directfon. 
On  acknowledgment  of  signature  in  general,  see  8  K  R,  A.  824.  note  •  36  Am' 
Dec.  319,  note. 

2  8  Part  of  the  opinion  is  omitted. 


144  LA.ST   WILLS   AND   TESTAMENTS.  (Part   1 

tempt  nothing  yvas  wanting  to  a  complete  transaction,  unless  it  be  that 
the  witnesses  did  not  then  write  their  names  anew. 

There  is  no  suspicion  of  unfairness,  restraint,  or  mental  incapacity, 
and  the  sole  question  is  whether  or  not  there  was  a  fair  compliance 
with  the  statute  requiring  that  each  witness  "shall  sign  his  name  as  a 
witness  at  the  end  of  the  will  at  the  request  of  the  testator."    *     *    * 

In  Matter  of  Stewart's  Will,  2  Redf.  Sur.  77,  the  question  arose 
whether  there  was  a  request  to  the  witnesses  before  they  signed. 
There  was  no  express  request.  The  court  says :  "I  am  further  of  the 
opinion  that  the  reading  of  the  attestation  clause  signed  by  the  wit- 
nesses, stating  that  they  subscribed  by  request  of  the  testator  in  his 
presence,  without  objection  from  him,  may  be  regarded  as  an  adoption 
of  a  request  to  that  effect,  though  subsequent  to  the  signing  by  them. 
This  view  is  not  opposed  to  Jackson  v.  Jackson,  39  N.  Y.  153." 

Clearly  the  same  rule  by  which  a  request,  made  after  the  subscrip- 
tion by  the  witnesses,  may  relate  back  to  a  moment  before  the  actual 
subscription,  will  require  that,  under  the  same  circumstances,  the  pub- 
lication as  well  as  the  request  may  be  regarded  as  having  accom- 
,  panied  or  preceded  the  signing  by  the  witnesses. 

In  Jackson  v.  Jackson,  39  N.  Y.  153,  it  was  held  that  probate  should 
be  denied  where  the  witnesses  signed  before  the  testator's  act  of  sig- 
nature ;  but  in  that  case  there  were  no  words  of  publication,  acknowl- 
edgment of  the  testator's  signature,  or  request  to  the  witnesses,  after 
the  testator  had  subscribed  the  instrument.  Upon  the  facts  there  ap- 
parent the  case  determines  nothing  except  that  a  will  is  not  properly 
solemnized  when  the  signatures  of  the  witnesses,  which  were  made 
at  the  request  of  the  testator,  but  before  his  own  subscription,  are 
followed  by  his  own  subscription  without  any  renewal  of  his  publica- 
tion or  request.  As  appears  from  the  language  of  the  opinion  quoted 
infra,  the  decision  rests  upon  the  absence  of  any  publication  or  request 
after  the  paper  was  subscribed,  as  well  as  the  lack  of  any  proof  that 
the  witnesses  by  their  signatures  attested  an  act  which  had  not  been 
done  when  their  names  were  written.  The  court  says  of  the  wit- 
nesses :  "They  are,  in  and  by  this  act  of  signing  their  names,  to  attest, 
not  only  the  signing  or  acknowledgment,  but  his  cotemporaneous  dec- 
laration that  it  is  his  will.  Their  signatures  do  not  attest  the  sign- 
ing by  the  testator,  if  they  are  placed  there  before  the  will  is  signed 
by  him.  For  some  period,  longer  or  shorter,  as  the  case  may  be,  those 
signatures  attest  no  execution — they  certify  what  is  not  true.  When, 
and  in  what  moment,  do  they  begin  to  operate  as  a  compliance  with 
the  statute?  The  only  reply  that  can  be  given  is:  When  the  testator 
signs  his  name.  This  is  a  dangerous  construction  of  the  statute.  May 
the  testator  keep  these  signatures  in  his  possession  one  hour,  one 
week,  or  one  year,  and  then  add  his  signature?  Certainly  not,  unless 
he  summons  the  same  persons  to  see  him  sign,  or  hear  his  acknowl- 
edgment thereof." 


Ch.  6)  EXECUTION   OF   WRITTEN   WILLS  AND   TESTAMENTS.  145 

From  the  last  sentence  quoted,  it  is  obvious  that,  in  the  personal 
opinion  of  the  judge  who  wrote,  the  result  would  have  been  otherwise, 
if,  after  the  signatures  of  the  testator  and  the  witnesses,  there  had 
been  a  further  publication  and  request  followed  by  the  adoption  of 
the  witnesses'  former  signatures  both  by  themselves  and  the  testator. 

The  evidence  in  the  case  at  bar  does  not  permit  a  finding^  that  these 
two  attempts  at  will  making  constituted  a  single  occasion,"  for  there 
was  a  distinct  break  in  the  transaction  between  the  original  signing 
of  the  will  and  the  final  effort  to  cure  the  deficiencies  which  first  ex- 
isted; nor  is  the  probate  ended  by  the  decisions  that  the  acts  pre- 
scribed by  the  statute  of  wills  need  not  always  be  done  in  the  order 
usually  and  properly  observed.  If  the  witnesses  did  not  sign  their 
names  after  the  testatrix  had  signed  and  after  her  publication  and 
request  were  made  in  their  presence,  then  they  did  not  ever  sign  as 
witnesses  for  the  purposes  of  the  statute,  for  the  only  request  and  the 
only  attestation  of  which  the  circumstances  permit,  and  in  fact  the 
only  observance  of  any  kind  which  took  place  in  the  presence  of  both 
witnesses,  must  have  come  to  pass  after  the  acknowledgment  by  the 
testatrix  and  her  subscription  formerly  made. 

The  cases  cited  indicate  that,  where  the  signatures  of  the  testator 
and  of  the  witnesses  all  appear  upon  an  instrument  which  has  not 
yet  been  properly  executed  and  attested,  the  witnesses  may  be  said 
to  have  signed  as  such  for  the  purposes  of  the  statute  if,  as  a  new 
transaction,  the  testator  acknowledges  his  signature,  declares  his  will, 
and  requests  the  witnesses  to  attest  the  same,  and  the  witnesses  there- 
upon, to  the  knowledge  of  the  testator,  accede  to  his  request  and  adopt 
their  previous  signatures  as  an  attestation  of  the  transaction. 

The  law  in  its  zeal  for  probate  could  not  go  much  further,  but  au- 
thority justifies  the  admission  of  this  will.  It  will  be  decreed  accord- 
ingly.    Probate  decreed.f 


< 


MANNERS  et  al.  v.  MANNERS. 
(Prerogative  Court  of  New  Jersey,  1907.     72  N.  J.  Eq.  854,  66  Atl.  583.) 

Magie,  Ordinary.  The  appeal  is  from  a  decree  refusing  probate 
to  a  paper  writing  offered  as  the  last  will  and  testament  of  Elizabeth 
V.  Manners.  The  paper  writing  purported  to  be  signed  by  the  testa- 
trix. There  was  a  perfect  attestation  clause,  to, which  was  appended 
the  signatures  of  two  witnesses,  and  these  witnesses  were  called  and 
testified  on  the  application  for  probate. 

The  perfect  attestation  clause  appended  to  the  will  was  prima  facie 
evidence  of  due  execution.  The  prima  facie  efitect  of  such  a  clause, 
however,  may  be  overcome  by  testimony,  and  even  by  the  testimony  of 

t  But  see  the  cases  on  the  order  of  signing,  post.  pp.  166-174. 
Cost. Wills— 10 


146  LAST   WILLS   AND   TESTAMENTS.  (Part   1 

the  subscribing  witnesses.  Berdan's  Case,  65  N.  J.  Eq.  681,  55  Atl. 
728. 

The  questions  presented  are  (1)  whether  their  testimony  overcomes 
the  declaration  of  the  attestation  clause  of  the  will  as  to  publication 
by  the  testatrix;  and  (2)  whether  their  testimony  overcomes  the  at- 
testation clause  in  respect  to  the  signature  of  the  will. 

The  evidence  renders  it  clear  that  the  signature  was  not  made  in  the 
presence  of  the  subscribing  witnesses.  When  they  entered  the  room 
in  which  the  testatrix  sat,  they  found  there  the  scrivener  who  had 
drawn  the  will  and  who  had  requested  them  to  come  into  the  house 
to  witness  its  execution.  Thereupon  the  scrivener  said  that  the  tes- 
tatrix had  made  her  will  and  wanted  them  to  witness  it.  The  v,'it- 
nesses  expressed  the  opinion  that  this  was  spoken  in  a  voice  loud 
enough  to  be  heard  by  the  testatrix,  who  sat  some  eight  or  ten  feet 
distant  in  the  same  room,  but  they  both  declare  that  she  made  no 
sign  of  assent,  and  both  agree  that  she  did  not  sign  the  paper  in  their 
presence. 

It  is  settled  law  that  a  testatrix  may  publish  a  will  by  assenting  to 
a  statement  made  in  her  presence.  Such  an  assent  may  be  made  by 
some  act  or  sign.  If  the  scrivener  declared,  in  the  hearing  of  the  tes- 
tatrix, that  the  paper  was  her  will  and  she  had  then  signed  it,  publi- 
cation might  be  inferred;  but,  when  there  was  no  act  or  sign  by  the 
testatrix,  I  think  that  the  proof  discloses  that  there  was  no  publica- 
tion by  the  testatrix. 

As  the  paper  writing  was  not  signed  in  the  presence  of  witnesses, 
it  is  by  our  statute  invalid,  unless  the  testatrix  acknowledged  "the 
making  thereof";  i.  e.,  the  making  of  the  signature  in  their  presence. 
On  this  subject  the  evidence  shows  that  the  scrivener  said,  apparently 
with  reference  to  the  paper  writing  which  was  in  the  room  and  on  the 
table,  "This  is  her  name."  Testatrix  remained  silent,  and  no  act  or 
sign  was  made  by  her  to  that  statement. 

But,  if  she  had  signified  her  assent  to  the  statement  of  the  scrivener, 
in  my  judgment,  the  acknowledgment  which  the  statute  requires 
would  not  be  made  out.  An  acknowledgment  that  the  signature  was 
her  name  is  not  an  acknowledgment  that  it  was  made  by  her,  and  I 
think  nothing  less  than  such  an  acknowledgment  will  satisfy  the  stat- 
utory requirements. 

In  my  judgment  the  decree  refusing  probate  must  be  affirmed. 


20 


2  9  "When  there  is  no  attestation  clause,  the  proponent  of  the  writing  claimed 
to  be  a  will  must  affirmatively  prove  all  the  statutory  requisites,  including 
that  of  publication,  which  is  the  declaration  by  the  testator  that  the  writing 
is  his  last  will.  Mundv  v.  Mundv,  1.")  N.  J.  E<i..(2  McCart.)  200;  Swain  v. 
Edmunds,  53  X.  J.  Eq.  (8  Dick.)  142  [32  Atl.  3G9] ;  s.  c.,  54  N.  J.  Eq.  (9  Dick.) 
438  [37  Atl.  1117]. 

"Publication  may  be  made  by  words,  or  acts,  or  signs,  which  clearly  and  dis- 
tinctly make  known  to  the  witnesses  that  what  they  are  requested  to  subscribe 
to  is  the  testator's  will.  liobbins  v.  Robbins,  50  N.  .T.  Eq.  (5  Dick.)  742  [26  Atl. 
673] ;    Swain  v.  Edmunds,  ubi  supra."  JIagie,  Ordinary,  in  Vernon  v.  Vernon, 


Ch.  6)  EXECUTION   OF  WRITTEN   WILLS  AND  TESTAMENTS. 


U7 


SECTION  5.— ATTESTATION  IN  THE  PRESENCE  OF  THE 
TESTATOR   AND,   WHEN   REQUIRED,   IN   THE   PRES- 
ENCE OF  THE  OTHER  WITNESS  OR  WITNESSES''" 


SHIRES  V.  GLASCOCK. 

(Court  of  Common  Pleas,  1687.     2  Salk.  688.) 

Upon  a  feigned  issue,  the  question  was.  Whether  the  will  was  made 
according  to  the  Statute  of  Frauds  ?  For  the  testator  had  desired  the 
witnesses  to  go  into  another  room,  seven  yards  distant,  to  attest  it,  in 
which  there  was  a  window  broken,  through  which  the  testator  might 
see  them. 

Et  Pkr  Cur.  The  Statute  required  attesting  in  his  presence,  to 
prevent  obtruding  another  will  in  place  of  the  true  one.  It  is  enough 
if  the  testator  might  see,  it  is  not  necessary  that  he  should  actually 
see  them  signing;  for  at  that  rate  if  a  man  should  but  turn  his  back, 
or  look  off,  it  would  vitiate  the  will.  Here  the  signing  was  in  the 
view  of  the  testator ;  he  might  have  seen  it,  and  that  is  enough.  So 
if  the  testator  being  sick  should  be  in  bed  and  the  curtain  drawn. 


DAVY  &  NICHOLS  v.  SMITH. 

(Court  of  King's  Bench,  1693.     3  Salk.  395.) 

Upon  a  trial  at  bar,  the  question  was.  Whether  the  witnesses  to  a 
will  had  pursued  the  directions  of  the  statute  of  frauds,  etc.,  in  sub- 
scribing their  names?  and  it  was  resolved,  that  where  the  testator  lay 
in  a  bed  in  one  room,  and  the  witnesses  went  through  a  small  passage 
into  another  room,  and  there  set  their  names  at  a  tgble  in  the  middle 
of  the  room,  and  opposite  to  the  door,  and  both  that,  and  the  door  of 
the  room  where  the  testator  lay,  were  open,  so  that  he  might  see  them 
subscribe  their  names  if  he  would;  and  though  there  was  no  positive 
proof  that  he  did  see  them  subscribe  yet  that  was  a  sufficient  subscrib- 
ing within  the  meaning  of  the  Statute,  because  it  was  possible  that 
the  testator  might  see  them  subscribe ;  and  therefore, 

69  N  J.  Eq.  759,  760,  761.  61  Atl.  409,  410  (1905).  See  In  re  Johnson's  Estate, 
152  Cal.  778,  93  Pac.  1015  (1908) ;  Savage  v.  Bowen,  103  Va.  540,  49  S.  E.  66S 
(1905)  ;  Burney  v.  Allen,  125  N.  C.  314,  34  S.  E.  500,  74  Am.  St.  Rep.  637  (1899). 
3  0  On  the  effect  of  the  fact  that  the  person  who  executed  the  will  as  testator 
was  not  previously  known  to  the  witness,  see  21  L.  R.  A.  (N.  S.)  531,  note.  On 
the  attestation  and  witnessing  of  wills,  see,  generally,  114  Am.  St.  Rep.  209, 
note. 


148  LAST   WILLS   AND   TESTAMENTS.  (Part  1 

Per  Curiam.  If  the  witnesses  subscribe  their  names  in  the  same 
room  where  the  testator  Hes,  though  the  curtains  of  the  bed  are  drawn 
close,  it  is  a  good  subscribing  within  this  Statute ;  because,  if  it  is  in 
his  power  to  see  them,  and  what  is  done,  it  shall  be  construed  to  be  in 
his  presence. 


CASSON  V.  DADE. 
(High  Court  of  Cbancery,  1781.     1  Bro.  C.  C.  99.) 

Honora  Jenkins  having  a  power,  though  covert,  to  make  a  writing 
In  the  nature  of  a  will,  ordered  the  will  to  be  prepared,  and  went  to 
her  attorney's  office  to  execute  it.  Being  asthmatical,  and  the  office 
very  hot,  she  retired  to  her  carriage  to  execute  the  will,  the  witnesses 
attending  her.  After  having  seen  the  execution,  they  returned  into 
the  office  to  attest  it,  and  the  carriage  was  accidentally  put  back  to 
the  window  of  the  office,  through  which,  it  was  sworn  by  a  person  in 
the  carriage,  the  testatrix  might  see  what  passed ;  immediately  after 
the  attestation,  the  witnesses  took  the  will  to  her,  and  one  of  them 
delivered  it  to  her,  telling  her  they  had  attested  it;  upon  which  she 
folded  it  up  and  put  it  into  her  pocket. 

The  Lord  Chancellor  [Lord  Thurlow]  inclined  very  strongly  to 
think  the  will  well  executed,  and  the  case  of  Shires  v.  Glascock,  2 
Salk.  688  (1  Lord  Raym.  507),  1  Eq.  Abr.  403,  was  relied  upon  to 
that  purpose. 

Mr.  Arden  pressed  much  for  an  issue;  but,  finding  Lord  Chan- 
cellor's opinion  very  decisive  against  him,  declined  it. 


In  re  BEGGANS'  WILL. 
(Prerogative  Court  of  New  Jersey,  1905.     68  N.  J.  Eq.  572,  59  Atl.  874.) 

Magie,  Ordinary.^^  *  *  *  'pj^g  attestation  clause  appended  to 
the  paper  was  not  in  the  usual  form.  It  reads  thus :  "We,  the  under- 
signed, witnessed  Mrs.  Ann  Beggans  sign  this  paper,  which  she  de- 
clared and  acknowledged  to  be  her  last  wili  and  testament.  Michael 
B.  Holmes.     Peter  F.  Maguire."    *    *    *     ' 

When  an  attestation  clause  states  the  performance  of  some  of  the 
requisite  acts,  but  omits  to  state  the  performance  of  acts  also  requisite, 
on  reason  and  authority  the  proponent  must  establish  by  evidence  the 
performance  of  the  latter  acts.  Ayres  v.  Ayres,  43  N.  J.  Eq.  565,  12 
Atl.  621. 

It  will  be  observed  that  by  the  attestation  clause  now  under  con- 
sideration the  subscribing  witnesses  assert  the  performance  of  two 
t-equisite  acts  thus:    (1)  That  the  deceased  "declared"  the  disputed 


81  Part  only  of  the  opinion  Is  given. 


Ch.  6)  EXECUTION   OF   WRITTEN   WILLS   AND   TESTAMENTS.  149 

paper  "to  be  her  last  will  and  testament,"  and  (2)  that  they  "witness- 
ed" the  deceased  "sign  this  paper."  They  wholly  omit  to  certify  that 
they  subscribed  their  names  thereto  in  the  presence  of  deceased.  This 
requisite  of  the  statute  is  designed  to  prevent  substitution  and  fraud 
upon  an  intending  testator  (Mandeville  v.  Parker,  31  N.  J.  Eq.  242), 
and  no  amount  of  proof  that  the  very  paper  signed  by  deceased  was 
that  which  the  subscribing  witnesses  signed  will  avail  to  establish  it 
as  a  will  if  it  fails  to  show  that  their  signatures  were  affixed  in  the 
presence  of  the  deceased.     *     *     * 

The  third  question  is  whether  proponent's  proof  establishes  the  fact 
that  the  witnesses  subscribed  their  names  to  the  paper  in  the  presence 
of  deceased. 

On  this  subject  the  attestation  clause  is  silent,  and  the  subscribing 
witnesses  are  again  at  variance.  Both,  however,  agree  that  their  act 
of  subscribing  was  not  done  in  the  room  in  which  deceased  was,  but 
in  the  adjoining  room,  at  a  table  therein.  They  disagree  as  to  the 
position  of  the  table  at  that  time,  Maguire  asserting  that  it  was  in 
the  center  of  that  room,  and  Holmes  asserting  that  it  was  on  one  side 
of  that  room.  It  is  conceded  that  if  it  was  in  the  center  deceased  could 
not  have  seen  the  act  of  the  witnesses  in  subscribing,  while  if  it  was 
on  the  side,  as  fixed  by  Holmes,  the  deceased  could  have  seen  the  act 
if  she  had  turned  in  that  direction. 

A  diagram  of  the  bedroom  and  of  the  adjoining  room  and  the  vari- 
ous pieces  of  furniture  therein  was  put  in  evidence.  It  was  made 
under  the  instruction  of  the  daughter  of  the  deceased,  who  is  the 
principal  beneficiary  under  the  will.  She  placed  the  table  at  which 
Holmes  said  the  witnesses  signed  in  the  position  in  which  she  says  it 
was  at  the  time.  Assuming  that  the  daughter  correctly  pointed  out 
to  the  draftsman  of  the  plan  the  respective  positions  of  the  furniture, 
it  thereby  appears  that  deceased,  who  was  ill,  was  lying  in  a  bed  the 
head  of  which  was  against  the  partition  between  the  bedroom  and  the 
adjoining  room.  The  door  between  those  rooms  was  a  sliding  door, 
and  open.  The  table  in  the  adjoining  room  was  in  such  a  position  as 
to  leave  a  possible  vision  to  one  lying  on  the  bed  for  a  width  of  three 
and  one-half  feet.  But  in  order  to  see  the  act  of  the  witnesses  in  sub- 
scribing the  deceased  would  have  been  obliged  not  only  to  turn  her 
head,  but  to  look,  as  it  were,  above  hen  head.  If  deceased  was  sitting 
up  in  the  bed,  she  would  have  been  obliged  to  turn  her  head  over  her 
shoulder  in  order  to  see  the  witnesses. 

There  is  no  satisfactory  proof  as  to  which  position  deceased  was 
in  when  the  signatures  of  the  witnesses  were  made,  and  no  proof  at 
all  that  she  turned  her  head,  or  placed  herself  in  a  position  to  see 
that  act. 

In  Mandeville  v.  Parker,  31  N.  J.  Eq.  244,  Chancellor  Runyon  de- 
clared that  under  our  statute  requiring  the  subscribing  witnesses  to  a 
will  to  sign  in  the  presence  of  the  testator  an  attestation  in  the  same 
room  in  which  testator  is  is  prima  facie  an  attestation  in  his  presence, 


150  LAST   WILLS   AND   TESTAMENTS.  (Part   1 

and,  on  the  other  hand,  an  attestation  made  in  another  room  is  prima 
facie  not  made  in  his  presence.  In  Ayres  v.  Ayres,  43  N.  J.  Eq.  565, 
12  Atl.  621,  Chancellor  McGill  applied  that  doctrine  to  a  case  in  which 
the  witnesses'  signatures  were  affixed  in  the  same  room,  upon  a  bureau 
at  the  foot  of  the  bed  on  which  deceased  was  lying.  Upon  the  proofs 
he  found  that  deceased  at  the  time  was  so  supported  that  he  could  see 
the  motions  of  the  pen  used  by  the  witnesses,  though  he  could  not 
distinguish  the  letters  the  pen  was  forming,  and  that  his  eyes  were 
open  during  the  signing;  and  he  held  that  the  signing  under  those  cir- 
cumstances was  a  sufficient  compliance  with  the  statute. 

If,  in  the  case  in  hand,  it  had  been  made  to  appear  that  the  deceased 
placed  herself  in  a  position  to  see  the  witnesses  signing,  and  was  look- 
ing in  that  direction,  it  may  be  that  the  presumption  that  the  signing 
in  the  adjoining  room  was  not  a  signing  in  her  presence  would  have 
been  overcome.  But,  in  the  absence  of  such  proof,  the  presumption 
is  not  overcome.  If  Holmes  is  correct  in  his  description  of  the  place 
of  signing  by  the  witnesses,  the  signing  is  not  shown  to  be  a  sufficient 
compliance  with  the  statute.  If  Maguire  is  correct,  the  signing  could 
not  have  been  seen  by  deceased.  The  decree  is  therefore  supported 
on  this  ground. ^^     *     *     * 

3  2  See  Goods  of  Colman.  3  Curt.  118  (1842) ;  Norton  v.  Bazett,  Deane  &  Swa- 
bey  2.59  (18.56).  In  Graham  v.  Graham,  ,32  N.  C.  219  (1849).  witnesses  who 
signed  in  another  room,  where  their  backs  could  be  seen  by  the  testator  if  he 
turned  his  head  and  looked  around  the  side  of  the  door,  were  held  not  to  have 
signed  in  his  presence.  The  court  said  that  the  testator  must  be  able  to  see 
tlie  paper  if  he  will  look,  and  to  know  for  himself  that  it  is  the  true  one. 
But  see,  contra,  Nock  v.  Nock's  Dx'rs,  10  Grat.  (Va.)  106  (1853).  ^\Tiere  the 
subscription  takes  place  in  the  same  room  with  the  testator,  and  he  can  see 
the  table  and  the  witnesses,  it  does  not  matter  that  he  cannot  see  the  will, 
the  pen,  or  the  hand  that  holds  the  pen  as  the  witness  writes.  In  re  Tobm, 
19G  111.  484,  63  N.  E.  1021  (1902).  See,  also,  Ayres  v.  Ayres,  43  N.  J.  Eq.  565, 
12  Atl.  621  (1887).  "I  am  of  opinion  that  under  the  act,  where  a  paper  is  exe- 
cuted by  the  deceased  in  the  same  room  where  the  witnesses  are,  and  who  at- 
test the  paper  in  that  room.  It  is  an  attestation  in  the  presence  of  the  testator, 
although  they  could  not  actually  see  him  sign,  nor  the  testator  actually  see 
the  witnesses  sign."  Sir  Herl>ort  .lenner,  in  Newton  v.  Clarke,  2  Curt.  320 
(1S39).  But  the  remark  of  Goroll  Barnes,  J.,  during  the  argument  of  Brown 
V.  Skirrow.  [19021  P.  3,  5,  should  be  noted,  namely:  "You  cannot  be  a  witness 
to  an  act  that  you  are  unconscious  of;  otherwise,  the  thing  might  be  done 
In  a  ballroom  100  feet  long  and  with  a  number  of  people  in  the  intervening 
space."  Where  the  subscription  takes  place  out  of  the  room,  and  out  of  the 
presence  of  the  testator,  a  subso<iiTent  acknowledgment  of  his  signature  by 
the  witness  is  InsufRcient.  Mendell  v.  Dunbar,  169  INIass.  74,  47  N.  E,  402,  61 
Am.  St.  Rep.  277  (1807);  Iliiulmarsh  v.  Charlton,  reported  post.  p.  I6G.  "The 
declaration  of  our  statute  that  such  an  instrument  shall  be  attested  and  sub- 
scribed in  the  presence  of  the  testator,  'or  else  shall  be  utterly  void  and  of 
no  effect,'  is  very  significant.  ♦  *  •  Acknowledgment  of  subscription  Is  not 
the  same  In  fact  as  actual  subscription,  and,  in  view  of  the  statute,  we  do  not 
think  we  have  any  right  to  decide  that  it  is  the  same  in  law."  Durfee,  C.  J., 
In  Town  of  Pawtucket  v.  Ballon,  15  11.  I.  58,  59,  23  Atl.  4.3,  2  Am.  St.  Rep.  868 
(188.5).  But  .see  Sturdivant  v.  Birchett,  10  Grat.  (Va.)  67  (18.53).  On  what  con- 
stitutes subscription  by  a  witness  to  a  will  in  the  presence  of  the  testator,  see 
6  Am.  &  Eng.  Ann.  Cas.  414,  note;  114  Am.  St.  Rop.  224,  note;  1  Coffey's 
Prob.  Dec.  39.  note. 


Ch.  6)  EXECUTION   OF   WRITTEN   WILLS   AND   TESTAMENTS. 

REED  V.  ROBERTS. 

(Supreme  Court  of  Georgia,  1858.    26  Ga.  294.) 

Lumpkin,  J.^^  The  issue  in  this  case  is,  devisavit  vel  non.  And 
the  only  question  which  we  deem  it  necessary  to  discuss  is,  whether 
the  will  of  John  Nobbett  was  duly  attested  under  the  statute  of 
frauds?  The  act  of  29  Car.  II,  c.  3,  requires  that  the  attestation  of 
the  witnesses  shall  be  in  the  presence  of  the  testator.  Was  this  pro- 
vision complied  with  in  this  case? 

The  testator  executed  his  will  in  extremis.  He  was  very  sick,  and 
in  great  pain  at  the  time,  and  died  shortly  afterwards.  The  bed  upon 
which  he  lay  had  half  stand-posts  for  curtains.  There  was  a  counter- 
pane stretched  across  the  head,  to  protect  him  from  the  air.  Thus 
situated,  he  was  raised  up  and  supported,  leaning  on  the  shoulder  of 
a  friend,  until  he  signed  the  will  himself.  It  was  then  taken  back  of 
the  head  of  the  bed,  to  a  chest,  against  the  wall,  some  seven  or  eight 
feet  distant,  where  it  was  attested  by  the  subscribing  witnesses.  It  is 
not  pretended  that  he  actually  saw  them.  The  weight  of  the  testi- 
mony is,  that  he  was  unable,  without  help,  to  have  changed  his  posi- 
tion, so  as  to  have  seen  the  witnesses  subscribe.  It  is  admitted  that, 
by  removing  the  curtain  in  the  rear,  and  turning  his  head,  or  elevat- 
ing his  head  above  the  level  of  the  screen,  and  turning,  or  by  being 
moved  more  toward  the  side  of  the  bed,  and  turning  his  head  and 
shoulders,  so  as  to  have  looked  around  the  post,  he  could  have  wit- 
nessed the  attestation.  Under  this  statement  of  facts,  the  court  was 
requested  to  charge  the  jury,  "that  if  the  situation  of  parties  was  such 
that  the  testator  might  have  seen  the  attestation  of  the  will  by  the 
subscribing  witnesses,  by  rising  from  his  bed,  it  was  not  a  good  at- 
testation; that  he  must  have  been  able  to  have  seen  it  in  his  actual 
position,  at  the  time  of  attestation."  Which  charge  the  court  gave  to 
the  jury,  with  the  addition  and  qualification,  "that  if  the  testator 
might,  by  a  slight  effort,  or  by  reaching  out  his  hand  and  removing 
the  counterpane  and  obstructions  behind  him,  or  by  turning  his  head, 
shoulders  and  body  in  the  bed,  provided  he  was  able  to  do  so,  have 
seen  the  witnesses  subscribe  and  attest  the  will,  it  was  a  sufficient  at- 
testation, in  his  presence.  But  if  it  required  any  considerable  effort 
for  the  testator  to  have  seen  the  witnesses  subscribe  the  will,  it  was 
not  a  good  attestation." 

The  jury  found  a  verdict  in  favor  of  the  will,  and  counsel  for  the 
caveators  moved  the  court  to  set  it  aside  and  direct  a  new  trial,  main- 
ly on  the  ground,  that  the  instruction  given  was  a  misdirection  as  to 
the  law  of  the  case.  The  application  being  refused,  a  writ  of  error  is 
prosecuted  to  this  court. 

It  cannot  be  denied  that  the  courts,  both  in  England  and  in  this 
country,   from  a  disposition  to  favor  wills,  have  departed,  not  onl)- 

88  The  statement  of  facts  is  omitted,  and  part  only  of  tlie  opinion  '<?  siren, 


152  LAST  WILLS  AND  TESTAMENTS.  (Part   1 

from  the  strict  construction,  but  the  obvious  meaning,  of  tlie  statute 
of  frauds ;  and  tlie  result  has  been  to  open  the  door  to  ^•e^y  extensive 
htig-ation.  Shires  v.  Glasscock,  2  Salk.  6SS;  Davy  v.  Smitli.  3  Salk. 
395:  Longford  v.  Eyre,  1  P.  \\'ms.  740;  Casson  v.  Dade,  1  Bro.  C. 
C.  99 :  Tod  v.  Earl  of  Winchelsea,  2  Carr.  &  Payne,  4SS ;  Broderick 
V.  Broderick,  1  P.  Wms.  '239 ;  Doe  v.  Manifold,  1  ^^laule  &  Selw.  294, 
12  Common  Law  Rep.  227 ;  Right  v.  Price,  Douglas,  241 ;  Par.  on 
Dev.  90-97;  Roberts  on  Wills,  163-167;  Longchamp  v.  Fish,  5  Bos. 
&  Pull.  415 ;  Russell  v.  Falls,  3  Har.  &  McU.  ^Id.)  457,  1  Am.  Dec. 
3S0;  Edelen  v.  Hardey,  7  Har.  &  J.  (Md.)  61,  16  Am.  Dec.  292. 

But,  notwithstanding  courts  of  justice  have  thus  leant  strongly  in 
favour  of  tlie  validity  of  wills  fairly  made,  and  where  there  is  no  im- 
putation of  fraud,  still  there  is  a  limit  prescribed  by  positive  law,  be- 
yond which  we  cannot  go.  The  witnesses  must  subscribe  in  the  pres- 
ence of  the  testator,  in  some  sense,  or  else  the  statute  requiring  this 
to  be  done  is  judicially  repealed. 

The  first  case  we  have  upon  this  subject  is  that  of  Shires  v.  Glass- 
cock, reported  in  2  Salk.  6SS,  Cardiw.  Si,  and  1  Equity  Cases,  Abridg- 
ed, 403.  It  was  decided  in  3  Jac.  H,  about  eleven  years  after  the 
making  of  the  statute,  and  has  ever  since  been  considered  a  leading 
case,  and  is  constantly  referred  to.  Let  us  for  a  moment  examine  this 
case,  and  compare  it  with  the  one  before  us,  and  the  doctrine  con- 
cended  for  in  support  of  this  will. 

Sir  George  Shires,  being  sick  in  bed.  made  his  will,  and  signed  it 
in  the  presence  of  three  witnesses ;  but,  he  being  very  ill.  the  wit- 
nesses withdrew  into  a  gallery,  seven  yards  distant,  between  which 
and  the  chamber,  where  the  testator  lay.  there  was  a  lobby,  with  glass 
doors,  and  the  glass  broken  in  some  places.  Here  the  witnesses  sub- 
scribed the  will.  It  was  proved  that  the  testator,  from  the  bed  where 
he  lay,  might  have  seen  the  table  in  the  gallery,  on  which  the  witnesses 
subscribed,  through  the  lobby  and  the  broken  glass  window.  Per 
Curiam:  "The  statute  required  attesting  in  his  presence,  to  prevent 
obtruding  another  will  in  the  place  of  the  true  one;  it  is  enough  if 
the  testator  might  see ;  it  is  not  necessary  that  he  should  actually  see 
them  signing;  for  at  that  rate,  if  a  man  should  but  turn  his  back,  or 
look  off,  it  would  vitiate  the  will.  Here,  the  signing  was  in  view  of 
the  testator.    He  might  have  seen  it.  and  that  was  enough." 

This,  now,  is  the  case,  and  the  judgment  of  the  court  upon  it.  But. 
m  pronouncing  the  decision,  it  is  added:  "So  if  the  testator,  being 
sick,  should  be  in  bed  and  the  curtain  drawn."  Let  it  be  remembered 
that  this  latter  point  was  not  before  the  court;  tliat  it  was  a  bald 
obiter  dictum. 

Well,  the  next  case  that  came  up  is  Davy  v.  Smith  (3  Salk.  395), 
in  which  the  question  was.  whether  the  witnesses  to  a  will  had  pur- 
sued the  statute  of  frauds  in  subscribing  their  names ;  and  it  was 
resolved  that  where  the  testator  lay  in  a  bed  in  one  room,  and  the 
witnesses  went  through  a  small  passage  into  another  room,  and  there 


Ch.  G)  EXECUTION   OF   WRITTEN   WILLS   AND   TESTAMENTS.  153 

set  their  names,  at  a  table  in  the  middle  of  the  room,  and  opposite 
to  the  door,  and  both  that  and  the  door  of  the  room  where  the  testa- 
tor lay  were  open,  so  that  he  might  see  them  subscribe  their  names, 
if  he  would,  though  there  was  no  positive  proof  that  he  did  see  them 
subscribe,  yet  that  was  a  sufficient  attestation,  within  the  meaning  of 
the  statute,  because  the  testator  might  have  seen  them  subscribe.  And 
therefore,  per  Curiam:  "If  the  witnesses  subscribe  their  names  in 
the  same  room  where  the  testator  lies,  though  the  curtains  of  the  bed 
are  drawn  close,  it  is  a  good  subscribing  within  the  statute." 

Here  we  have  the  bed  curtain  obiter  in  the  previous  case  resolved 
to  be  law  in  this,  with  the  word  "close"  superadded,  which  is  not  in 
the  original  case,  upon  a  state  of  facts  which  did  not  at  all  justify  it. 
And  in  this  form  the  proposition  has  passed  into  the  elementary  books, 
and  is  cited  as  a  precedent,  namely,  th^t  signing  in  the  room  was 
signing  in  the  presence  of  the  testator,  though  the  testator  be  in  bed 
and  the  curtains  closely  drawn.  And  this  illustration  in  Shires  v. 
Glasscock,  adopted  as  law  in  Davy  v.  Smith,  is  the  foundation  of  all 
that  class  of  cases  which  hold  that,  where  the  testator  had  the  capac- 
ity to  witness  the  attestation,  by  making  some  little  effort,  it  was  a 
sufficient  compliance  with  the  statute. 

Let  us  hear  no  more  fault  finding  after  this  with  obiter  dicta. 
Three-fourths  of  all  the  law  in  force  in  Christendom,  as  can  be  dem- 
onstrated by  reference  to  the  English  and  American  reports,  origi- 
nated in  the  obiter  dicta  of  courts  and  judges.  And  this  is  no  random 
remark,  recklessly  made,  but  attested  by  an  eminent  jurist,  now  oc- 
cupying one  of  the  most  elevated  judicial  positions  in  the  Union- 
Well  may  it  be  regretted  that  this  doctrine  of  the  constructive  pres- 
ence of  the  testator  was  ever  carried  so  far.  It  has  not  only,  in  the 
language  of  Chancellor  Kent,  "opened  the  door  to  very  extensive  liti- 
gation," but  lifted  up  a  floodgate,  through  which  a  torrent  is  rushing 
that  threatens  to  sweep  away  all  the  old  landmarks  of  the  law  upon 
the  subject  of  the  execution  of  wills.  And  where  will  it  stop?  If 
any  change  in  the  position  of  the  testator  is  required,  how  much  or 
how  little  will  do?  Can  any  rule  be  prescribed?  If  the  attestation 
is  sufficient,  provided  it  could  be  seen  by  the  testator,  by  drawing 
aside  the  surrounding  curtains,  or  elevating  his  head  over  the  screen 
at  his  head,  or  by  turning  his  head,  shoulders  and  body  in  the  bed,  why 
not  by  changing  the  position  of  his  whole  body  from  the  right  side  to 
the  left,  or  even  getting  out  of  his  bed?  Nay,  why  stop  at  this?  If 
the  testator's  situation  be  such  that  he  cannot  see  the  subscription  by 
the  witnesses  by  the  exertion  of  his  own  power  and  volition,  why 
should  it  not  be  sufficient  to  satisfy  the  requisition  of  the  statute,  ac- 
cording to  this  liberal  and  latitudinous  construction  of  it,  if  the  tes 
tator  might  cause  himself  or  the  witnesses  to  be  placed  in  such  a  situ- 
ation as  he  might  see  their  attestation  ? 

Presence  is  not  defined  in  the  statute.     It  is  obviously  not  synony- 
mous with  being  in  the  same  room.     A  testator  may  see  as  accurately 


154  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

what  is  passing  in  another  room,  as  if  done  in  the  same  room.  And 
on  the  contrary,  he  may  be  so  situated  as  not  to  see  what  is  transact- 
ing in  the  same  room  where  he  hes,  and  thus  have  a  false  paper  sur- 
reptitiously executed  as  his  will.  The  object  of  the  law  can  only  be 
effectuated  when  the  testator  is  so  situated,  both  as  to  the  will  and  the 
witnesses,  that  he  may,  if  he  choose,  see  both,  in  the  act  of  attesta- 
tion. And  it  is  wholly  immaterial  whether  the  attestation  be  in  the 
same  room  or  in  a  different  room.  The  rule  is  the  same  as  to  both. 
The  will  and  the  witnesses  must  both  be  in  the  preesnce  of  the  testa- 
tor. He  ought  to  be  able,  without  an  effort  or  change  of  position,  to 
see  both.  Perhaps  it  would  be  requiring  too  much  to  insist  that  it 
should  be  shown  that  he  did  actually  see  both.  Witnesses  engaged 
in  the  act  of  subscribing  their  names  rarely  watch  to  see  if  the  testator 
at  the  same  time  is  looking  on.  But  it  should  appear,  in  the  words  of 
one  of  the  cases,  "that  he  was  so  present  to  them,  and  they  to  him, 
as  that  he  might  and  probably  did  see  the  attestation."  This  we  be- 
lieve to  be  the  sum  and  substance  of  the  law,  and  the  current  of  de- 
cisions; and  that  to  go  beyond  this  is  dangerous  and  mischievous. 
It  will  never  do  to  hold  that,  because  a  testator  may  change  his  situ- 
ation, or  cause  it  to  be  done,  or  remove  any  intervening  obstruction 
(without  doing  either),  and  that  thereby  he  might  have  seen  the  at- 
testation, it  will  suffice. 

The  will  of  a  blind  man  is  an  exceptional  case,  and  one  not  very 
well  settled.    We  leave  that  to  be  decided  when  the  case  occurs. 

Why  a  desire  to  favor  the  wills  of  testators  made  in  extremis 
should  exist  in  this  state  we  do  not  very  well  understand.  Ordinarily, 
our  statute  of  distribution  makes  the  fairest  disposition  of  a  dead 
man's  property.  Here,  a  man  advanced  in  life,  weakened  by  disease, 
and  racked  with  pain,  is  supported  in  bed  while  he  subscribes  his  will. 
While  in  the  act  of  executing  his  will,  by  which  he  bequeathes  an  es- 
tate of  from  $20,000  to  $35,000  to  the  children  by  a  second  marriage, 
he  forgets  the  amount  of  the  pittance  with  which  he  cuts  oft"  the  oft*- 
spring  of  a  former  marriage,  first  saying,  when  the  will  was  read  to 
him,  that  he  thought  he  had  left  to  them  $10  instead  of  $100,  and 
then  upon  the  second  reading,  $5  instead  of  $10 !  And  yet  the  salu- 
tary safeguards  of  the  statute  of  frauds  are  to  be  broken  down  and 
disregarded,  to  set  up  such  a  will !  It  is  going  quite  far  enough  to 
say,  in  such  a  case,  that  the  law  is  satisfied  by  the  testator  being  in 
such  a  situation  that  he  may,  from  that  situation,  and  without  change 
of  position,  and  without  aid  from  others,  supervise  the  attestation. 

In  this  case,  after  the  testator  signed,  the  witnesses  retired  oblique- 
ly behind  the  head  of  the  bed,  with  a  counterpane  intervening  between 
them  and  him.  It  is  not  pretended  that  he  did  see  them  attest  the 
will.  It  is  clear  that  by  casting  his  eyes,  as  he  lay,  in  any  direction, 
the  factum  of  the  attestation  was  not  within  the  scope  of  his  vision. 
The  probability  from  the  proof  is  that  he  could  not  have  changed  his 
situation,  from  bodily  infirmity  and  pain.     He  was  certainly  not  as- 


Ch.  6)  EXECUTION   OF   WRITTEN   WILLS   AND   TESTAMENTS.  155 

sisted  to  do  so  by  others.  The  attestation,  therefore,  being  out  of  the 
scope  of  the  testator's  vision,  becomes  bad,  as  not  being  in  his  pres- 
ence.    ♦     *     *    Judgment  reversed.^* 


CUNNINGHAM  v.  CUNNINGHAM  et  al. 

(Supreme  Court  of  Minnesota,  1900.     80  Minn.  180,  83  N.  W.  58,  51  L.  R.  A. 

642,  81  Am.  St.  Rep.  256.) 

Collins,  J.  Gen,  St.  1894,  §  4426,  provides :  "No  will,  except  such 
nuncupative  wills  as  are  hereinafter  mentioned,  shall  be  effectual  to 
pass  any  estate,  real  or  personal,  or  to  change,  or  in  any  way  effect 
the  same,  unless  it  is  in  writing,  and  signed  at  the  end  thereof,  by  the 
testator,  or  by  some  person  in  his  presence,  and  by  his  express  direc- 
tion, and  attested  and  subscribed  in  his  presence,  by  two  or  more  com- 
petent witnesses."  And  the  only  question  in  issue  on  this  appeal  is 
whether  the  alleged  will  was  attested  and  subscribed  in  the  presence 
of  the  testator,  Cunningham,  by  the  two  persons  whose  names  were 
attached  as  witnesses. 

The  testator  had  been  confined  to  his  room  for  some  time.  It  was 
a  small  bedroom  with  a  doorway  which  led  into  a  large  room  upon 
the  north,  the  head  of  his  bed  being  near  the  partition  between  the 
two.  There  was  no  door,  but  a  curtain  had  been  hung  in  the  doorway, 
which  was  drawn  to  the  west  side  at  the  time  in  question.  Three 
days  before  the  signing  the  testator  sent  for  his  attending  physician, 
Dr.  Adams,  to  come  to  his  house,  and  draw  his  will.  At  the  same  time 
he  sent  for  Dr.  Dugan  to  be  present  as  a  witness.  The  draft  of  a  will 
made  by  Dr.  Adams  as  dictated  by  Cunningham  was  unsatisfactory, 
and  both  of  the  physicians  went  away.  They  were  again  summoned 
November  12,  1899,  and  went  to  the  house  in  the  forenoon.  Dr. 
Adams  drew  a  new  will  as  instructed  by  Cunningham,  the  latter  re- 
maining in  his  bed.  When  the  document  was  fully  written,  both  men 
stepped  to  the  bedside,  and  Dr.  Adams  read  it  to  the  sick  man.  Hav- 
ing heard  it  read  through,  Cunningham  pronounced  it  satisfactory, 

8  4  "Tn  the  case  before  ns,  It  does  not  appear  whether  the  decedent  was  able 
to  turn  his  head  to  one  side  or  not.  Two  of  the  witnesses  said  that  if  he  had 
turned  his  liead  to  one  side  he  could  have  seen  the  paper.  If  he  could  have 
done  so  without  risk  or  danger,  or  not  contrary  to  his  physician's  advice,  and 
was  of  testamentary  capacity  (and  there  is  no  proof  before  us  to  the  contrary), 
then  there  was  a  compliance  with  the  statute  in  reference  to  the  attestation. 
Cornelius  v.  Cornelius,  supra  [52  N.  C.  593  (1S60)].  But  even  if  he  was  of  tes- 
tamentary capacity,  and  there  was  no  fraud  or  undue  influence,  yet  if  he  was 
unable  to  partly  turn  his  head  so  that  he  might  look  and  see  the  paper  writing 
as  it  was  being  subscribed,  the  attestation  was  not  according  to  the  require- 
ments of  the  statute."  Montgomery,  J.,  in  Burney  v.  Allen,  125  N.  C.  314, 
320,  321,  34  S.  E.  500.  502,  74  Am.  St.  Rep.  637  (1899).  See  Neil  v.  Neil,  1 
Leigh  (Va.)  6  (1829) ;  Tribe  v.  Tribe,  1  Rob.  Ecc.  775  (1849) ;  Orndorff  v.  Hum- 
mer, 12  B.  Mon.  (Ky.)  619  (1852).  Compare  Walker  v.  Walker,  67  Miss.  529, 
7  South.  491  (1890)  ;   Aikin  v.  Weckerlv,  19  Mich.  482  (1870). 


156  LAST   WILLS   AND   TESTAMENTS.  (Part   1 

and  then  signed  it.  When  so  signing  he  sat  on  the  edge  of  the  bed^ 
and  used  as  a  place  for  the  paper  a  large  book  which  was  lying  upon 
a  chair.  Drs.  Adams  and  Dugan  were  then  requested  to  sign  as  wit- 
nesses. For  this  purpose  they  stepped  to  a  table  in  the  sitting  room, 
which  stood  about  10  feet  from  where  Cunningham  sat,  and  there  af- 
fixed their  signatures.  The  time  occupied  in  so  signing  did  not  ex- 
ceed two  minutes,  and  immediately  thereafter  Dr.  Adams  returned  to 
the  bedside  with  the  paper.  Dr.  Dugan  stepped  to  the  doorway,  about 
three  feet  from  Cunningham,  and  then  Adams  showed  the  signatures 
of  the  witnesses  to  him  as  he  sat  on  the  edge  of  the  bed.  Cunning- 
ham took  the  paper,  looked  it  over,  and  said,  in  effect,  that  it  was  all 
right.  From  where  he  sat  he  could  not  see  the  table  which  was  used 
by  the  witnesses  when  signing.  He  could  have  seen  it  by  moving 
two  or  three  feet.  While  they  were  signing  he  leaned  forward,  and 
inquired  if  the  instrument  needed  a  revenue  stamp,  to  which  Dr. 
Adams  replied  that  he  did  not  know,  the  reply  being  audible  to  Cun- 
ningham. 

These  are  the  salient  and  controlling  facts  found  by  the  court  below, 
on  which  it  based  an  ultimate  finding  that  the  instrument  so  witnessed 
was  attested  and  subscribed  in  the  presence  of  the  testator,  and  then 
affirmed  the  order  of  the  probate  court  admitting  it  to  probate  as  the 
last  will  and  testament  of  the  deceased. 

The  appellants  (contestants  below)  insist  that  the  attestation  and 
subscription  by  the  witnesses  was  insufficient,  because  Mr.  Cunning- 
ham did  not  and  could  not  see  the  witnesses  subscribe  their  names 
from  where  he  sat,  and  their  contention  has  an  abundance  of  author- 
ity in  support  of  it  from  jurisdictions  in  which  statutes  copied  from 
the  English  law  on  the  subject,  and  exactly  like  our  own,  are  in  force. 
The  rule  laid  down  in  these  authorities  is  that  the  attesting  and  sub- 
scribing by  the  witnesses  must  take  place  within  the  testator's  range 
of  vision,  so  that  he  may  see  the  act  of  subscribing,  if  he  wishes,  with- 
out a  material  change  of  his  position;  and  that  he  must  be  mentally 
observant  of  the  act  while  in  progress. 

Lord  Ellenborough  thus  stated  it  in  Doe  v.  Manfiold,  1  Maule  & 
S.  294:  "In  favor  of  attestation  it  is  presumed  that,  if  the  testator 
might  see,  he  did  see;  but  I  am  afraid  if  we  went  beyond  the  rule 
which  requires  that  the  witness  should  be  actually  within  reach  of  the 
organs  of  sight,  we  shall  be  giving  effect  to  an  attestation  out  of  the 
devisor's  presence,  as  to  which  the  rule  is  that,  where  the  devisor 
cannot,  by  possibility,  see  the  act  doing,  that  is  an  act  out  of  his  pres- 


ence." 


Construing  the  same  words  in  the  Illinois  statute,  it  was  recently 
held :  "The  act  of  attestation  consists  in  the  subscription  of  the  names 
of  the  witnesses  to  the  attestation  clause  as  a  declaration  that  the  signa- 
ture was  made  or  acknowledged  in  their  presence.  It  is  this  act  of 
attestation  by  subscribing  their  names  to  the  will  as  witnesses  thereto 
ivhich  the  statute  requires  to  be  in  the  presence  of  the  testator.     The 


Ch.  6)  EXECUTION   OF   WRITTEN   WILLS   AND   TESTAMENTS.  157 

object  of  the  law,  as  frequently  declared,  is  to  prevent  fraud  or  im- 
position upon  the  testator,  or  the  substitution  of  a  surreptitious  will ; 
and  to  effectuate  that  object  it  is  necessary  that  the  testator  shall  be 
able  to  see  and  know  that  the  witnesses  subscribed  their  names  to  the 
paper  which  he  has  executed  or  acknowledged  as  his  will.  The  pur- 
pose of  the  statute  is  not  attained  by  mere  ability  to  see  the  witnesses, 
or  some  part  of  them,  but  the  act  of  attestation  is  the  thing  which 
must  be  in  the  presence  of  the  testator.  *  *  *  Jt  would  not  be  an 
attestation  in  the  presence  of  the  testator,  if  he  could  not  see  the  at- 
testation, but  merely  understood  from  the  surrounding  circumstances 
that  the  act  was  taking  place."  Drury  v.  Connell,  177  111.  43,  52  N. 
E.  368.^  = 

In  brief,  the  courts  have,  almost  without  exception,  construed  a 
statute  requiring  an  attestation  of  a  will  to  be  in  the  "presence"  of 
the  testator  to  mean  that  there  must  not  only  be  a  consciousness  on 
the  part  of  the  latter  as  to  the  act  of  the  witnesses  while  it  is  being 
performed,  but  a  contiguity  of  persons,  with  an  opportunity  for  the 
testator  to  see  the  actual  subscribing  of  the  names  of  the  witnesses,  if 
he  chooses,  without  any  material  change  of  position  on  his  part.  And 
yet  an  examination  of  the  decided  cases  wherein  the  ever-varying  cir- 
cumstances and  conditions  have  been  considered,  and  this  rule  applied, 
will  convince  the  reader  that  the  task  of  application  has  not  been  an 
easy  one,  and  has  led  to  surprising  results  at  times.  Some  years  ago 
a  large  number  of  American  and  English  cases  were  collected  in  a 
note  appended  to  Manderville  v.  Parker,  31  N.  J.  Eq.  842,  and  an 
examination  thereof  will  show  the  absurd  and  inconsistent  positions 
in  which  the  courts  have  frequently  placed  themselves. 

As  will  be  seen  from  the  facts  surrounding  the  cases  mentioned  in 
this  note,  or  cited  in  the  text-books  in  support  of  this  rule,  it  has 
been  held  almost  universally  that  an  attestation  in  the  same  room  with 
the  testator  is  good,  without  regard  to  intervening  objects  which 
might  or  did  intercept  the  view ;  and  also  that  an  attestation  outside 
the  room  or  place  where  the  testator  sat  or  lay  is  valid  if  actually 
within  his  range  of  vision.  And  no  court  seems  to  have  doubted  that 
a  man  unable  to  see  at  all  could  properly  make  a  will  under  the  stat- 
ute, if  the  witnesses  .attested  within  his  "conscious"  presence,  what- 
ever that  means.  Exactly  why  or  how  an  exception  in  the  case  of 
one  temporarily  or  permanently  blind  can  be  injected  into  this  statute 
has  not  been  attempted  by  any  court  or  writer,  so  far  as  we  know. 
Nor  has  there  been  any  success  in  the  effort  to  show  why  one  kind 

3  6  "This  court  has  frequently  held  that  the  attestation  of  a  will,  to  be  in  the 
presence  of  the  testator  within  the  meaning  of  the  statute,  must  take  place 
within  the  uninterrupted  range  of  testator's  vision ;  that  the  'presence'  of  the 
testator  means  contiguity,  with  such  an  uninterrupted  view  between  the  testa- 
tor and  the  subscribing  witnesses  that  he  could,  if  so  disposed,  see  the  act 
of  attestation,  whether  in  the  same  room  or  in  an  adjoining  room."  Carter, 
J.,  in  Schofield  v.  Thomas,  236  111.  417,  420,  86  N.  E.  122,  124  (1908).  Compare 
In  re  Bowling's  Will,  150  N.  C.  507.  64  S.  E.  368  (1909). 


158  LAST   WILLS   AND   TESTAMENTS.  (Part   1 

of  an  intervening  object — a  partition  wall,  for  instance — is  better  cal- 
culated to  afford  an  opportunity  for  the  perpetration  of  a  fraud  upon 
the  testator  than  is  another  kind,  say,  the  closed  curtains  of  an  old- 
fashioned  bed,  or  the  head  or  foot  board  of  a  bedstead,  or  any  other 
article  of  furniture  which  happens  to  be  an  obstruction  to  the  sight. 

Again,  it  is  difficult  to  see  what  sound  distinction  can  be  made, 
when  applying  the  rule,  between  a  case  where  the  testator  can  see  the 
witnesses  attest,  if  he  chooses  to  lean  his  body  forward  a  few  inches, 
and  the  case  where  the  act  can  be  seen  if  he  steps  forward  the  same 
distance.  Or,  take  a  case  where  a  testator  has  been  injured,  and  is 
compelled  to  lie  on  his  back  with  his  eyes  fixed  on  the  ceiling.  Must 
the  witnesses  affix  their  signatures  from  an  elevation  in  order  to  sign 
in  his  presence?  No  case  has  gone  that  far,  and  yet  what  difference 
would  it  make  with  such  a  testator  in  fact  or  in  sound  reason  if  the 
will  was  attested  10  feet  distant,  on  a  table  in  an  adjoining  room,  or 
on  a  table  the  same  distance  from  the  bed,  but  in  the  same  room? 

Take  the  case  at  bar.  The  testator  sat  on  the  edge  of  his  bed 
when  the  witnesses  signed  at  the  table  in  the  adjoining  room,  a  few 
feet  distant,  and  within  easy  sound  of  his  voice.  If  he  could  have 
seen  them  by  leaning  forward,  the  authorities  in  favor  of  upholding 
the  will  are  abundant.  Physically  he  was  capable  of  stepping  two  or 
three  feet  forward,  and  from  this  point  the  witnesses  would  have  been 
within  his  range  of  vision.  It  is  extremely  difficult  to  distinguish  be- 
tween the  two  cases,  and  yet  it  has  been  done  again  and  again  in  ap- 
plying the  rule. 

We  might  continue  these  suggestions  and  queries,  as  has  been  done 
quite  frequently  by  courts  which  have  not  been  entirely  satisfied  with 
a  very  rigid  construction  of  the  statute,  and  have  not  hesitated  to  say 
so ;  but  it  seems  unnecessary,  for  there  is  one  feature  in  these  findings 
of  fact  which  is  sufficient,  in  our  judgment,  to  warrant  an  affirmance, 
although  there  are  many  decisions  to  the  contrary.  As  before  stated, 
the  court  found  that  the  witnessing  of  the  will  consumed  not  more 
than  two  minutes,  and  that  immediately  thereafter  Dr.  Adams  return- 
ed to  the  testator  while  Dr.  Dugan  came  to  the  doorway,  not  over 
five  feet  distant,  whereupon  the  former  "showed  the  signatures  of 
the  witnesses  to  the  testator.  The  latter  took  the  will,  looked  it  over, 
and  said  in  effect  that  it  was  all  right." 

To  say  that  this  was  not  a  sufficient  attestation  within  a  statute 
which  requires  such  attestation  to  be  in  the  "presence"  of  the  testa- 
tor, simply  because  the  witnesses  actually  signed  a  few  feet  out  of 
the  range  of  his  vision,  is  to  be  extremely  technical  without  the  slight- 
est reason  for  being  so.  The  signing  was  within  the  sound  of  the 
testator's  voice ;  he  knew  what  was  being  done ;  the  act  occupied 
not  more  than  two  minutes;  the  witnesses  returned  at  once  to  the 
testator ;  their  signatures  were  pointed  out  to  him ;  he  took  the  in- 
strument into  his  own  hands,  looked  it  over,  and  pronounced  it  satis- 
factory.    The  whole  affair,  from  the  time  he  signed  the  will  himself 


Ch.  6)  EXECUTION   OP   WRITTEN  WILLS   AND  TESTAMENTS.  159 

down  to  and  including  his  expression  of  approval,  was  a  single  and 
entire  transaction;  and  no  narrow  construction  of  this  statute,  even 
if  it  has  met  the  approval  of  the  courts,  should  be  allowed  to  stand  in 
the  way  of  right  and  justice,  or  be  permitted  to  defeat  a  testator's 
disposition  of  his  own  property. 

In  Cook  v.  Winchester,  81  Mich.  581,  46  N.  W.  106,  8  L.  R.  A. 
822,  it  was  said :  "In  the  definition  of  the  phrase  'in  the  presence  of 
due  regard  must  be  had  to  the  circumstances  of  each  particular  case, 
as  it  is  well  settled  by  all  the  authorities  that  the  statute  does  not  re- 
quire absolutely  that  the  witnessing  must  be  done  in  the  actual  sight 
of  the  testator,  nor  yet  within  the  same  room  with  him.  If,  as  before 
shown,  they  sign  within  his  hearing,  knowledge,  and  understanding, 
and  so  near  as  not  to  be  substantially  away  from  him,  they  are  con- 
sidered to  be  in  his  presence." 

But,  as  was  said,  in  substance,  in  the  same  case,  we  agree  that  this 
will  was  validly  executed  expressly  on  the  ground  that  the  whole 
transaction  was  an  entirety  in  fact,  and  that,  immediately  after  the 
witnesses  had  attested,  the  instrument  was  returned  by  them  to  the 
hands  of  the  testator,  his  attention  was  called  to  their  signatures,  and 
he  expressed  his  satisfaction  and  approval  of  what  had  been  done. 
This  view,  which  does  no  violence  to  the  spirit  and  intent  of  the 
statute,  is  not  without  precedent  and  authority  aside  from  the  Michi- 
gan case,  although  it  may,  as  said  by  the  court  below,  run  contrary  to 
a  majority  of  the  decisions.  See  Sturdivant  v.  Birchett,  10  Grat. 
(Va.)  67,  and  Riggs  v.  Riggs,  135  Mass.  238,  46  Am.  Rep.  464.  Judg- 
ent  afifirmed.^' 


In  re  GOODS  OF  PIERCY. 

(Prerogative  Court  of  Canterbury,  1845.    1  Rob.  Ecc.  278.) 

Charlotte  Piercy  died  in  February,  1845,  having  just  before  her 
death  executed  her  will.  She  was  very  ill  in  bed,  and  totally  blind, 
but  in  full  possession  of  her  mental  faculties.  The  will  was  prepared - 
according  to  her  directions,  and  read  over  to  hei .  In  the  presence  of 
the  attesting  witnesses  she  signed  her  name  in  bed,  one  of  them  hav- 
ing placed  her  hand  on  that  part  of  the  paper  where  it  was  necessary 
for  her  to  sign.  By  reason  of  there  not  being  any  table  or  other  con- 
venience in  the  bedroom  on  which  the  witnesses  could  sign  their  names, 
they  all  proceeded  immediately  to  an  adjoining  room  on  the  same  floor, 
across  a  landing  or  passage,  and  there  within  view  of  the  bedroom, 
the  doors  of  both   rooms  being  open,  respectively   subscribed  their 

S6  See  Cook  v.  Wincliester,  81  Mich.  581.  46  N.  W.  106,  8  L.  R.  A.  822  (1S90) ; 
Healey  v.  Bartlett,  73  N.  H.  110,  59  Atl.  617  (1904) ;  Churcli  of  St.  \'iucent  de 
Paul  V.  Brannan,  97  Minn.  349,  107  N.  W.  141  (1906).  See,  also,  1  L.  R.  A. 
(N.  S.)  393,  note. 


160  LAST   WILLS   AND   TESTAMENTS.  (Part  1 

names.  A  plan  of  the  rooms  was  laid  before  the  court,  and  in  a  sec- 
ond affidavit  it  was  sworn,  that  the  testatrix,  from  her  bed,  could  have 
seen  the  witnesses  at  the  table  when  they  signed,  had  she  had  her 
eyesight. 

Addams,  on  these  facts,  moved  the  court  for  probate. 

Sir  Herbert  Jenner  Fust.  When  this  case  was  moved  on  a  former 
occasion,  there  was  no  evidence  to  show  that  the  testatrix  could  have 
seen  the  witnesses  sign,  had  she  had  her  eyesight,  and  I  felt  I  could 
not  place  her  in  a  better  position  than  one  who  could  see.  It  does 
not  appear  whether  there  were  curtains  to  the  bed ;  still,  as  it  is 
positively  sworn  by  two  witnesses  that  she  could,  had  she  had  her 
sight,  have  seen  from  her  bed  the  witnesses  subscribe,  I  cannot  refuse 
this  application.^^ 


RIGGS  V.  RIGGS. 

(Supreme  Judicial  C!ourt  of  Massachusetts,  1883.    135  Mass.  238,  46  Am. 

Rep.    464.) 

Morton,  C.  J.'®  The  only  question  presented  by  this  report  is  as 
to  the  sufficiency  of  the  attestation  by  the  witnesses  to  the  will  and 
codicil  of  the  testator. 

The  statutes  provide  that,  in  order  to  be  valid,  a  will  or  codicil  must 
be  signed  by  the  testator,  or  by  some  person  in  his  presence  and  by  his 
direction,  "and  attested  and  subscribed  in  his  presence  by  three  or 
more  competent  witnesses."    Gen.  St.  c.  92,  §  6 ;  Pub.  St.  c.  127,  §  1. 

It  appeared  at  the  hearing  that  the  testator  had  received  a  severe 
injury,  and  was  lying  upon  his  bed  unable  to  moye.  His  sight  was 
unimpaired,  but  he  could  only  look  upward,  as  he  was  incapable  of 
turning  his  head  so  as  to  see  what  took  place  at  his  side.  As  to  the 
codicil,  it  appeared  that  it  was  attested  and  subscribed  by  the  three 
witnesses  in  the  same  room  with  the  testator,  at  a  table  by  the  side  of 
the  bed  about  four  feet  from  his  head.  The  contestant  contends  that 
this  attestation  was  insufficient,  because  the  testator  did  not  and  could 
not  see  the  witnesses  subscribe  their  names.  It  has  been  held  by 
some  courts,  upon  the  construction  of  similar  statutes,  that  such  an  at- 
testation is  not  sufficient.  See  Aikin  v.  Weckerly,  19  Mich.  482,  505 ; 
Downie's  Will,  42  Wis.  66;    Tribe  v.  Tribe,  13  Jur.  793;    Jones  v. 

87  See  Ray  v.  Hill,  3  Strob.  (S.  C.)  2*)7,  49  Am.  Dec.  647  (1848) ;  Clifton  v. 
Murray.  7  Ga.  564,  .50  Am.  Dec.  411  (1849). 

"In  the  case  of  a  blind  person,  his  will  would  be  attested  in  his  presence  If 
the  act  was  brought  within  his  personal  knowledge  through  the  medium  of 
other  sensHS.  But  whether  a  person  is  blind  or  can  see,  an  attestation  is  cer- 
tainly not  in  his  i)resence  if  he  has  no  coiii^cious  personal  knowledge  of  the  act 
and  is  merely  told  that  it  has  been  performed  in  another  room."  Cartwright, 
C.  J.,  in  Calkins  v.  Calkins.  216  111.  458,  464,  75  N.  B.  182,  183,  1  L.  R.  A,  (N. 
S.)  303,  108  Am.  St.  Rep.  233  (1905). 

8  8  The  statement  of  facts  is  omitted.  ' 


Ch.  6)  EXECUTION   OP  WRITTEN   WILLS  AND  TESTAMENTS.  161 

Tuck.  48  N.  C.  202;  Graham  v.  Graham,  32  N.  C.  219.  But  we  are 
of  opinion  that  so  nice  and  narrow  a  construction  is  not  required  by 
the  letter,  and  would  defeat  the  spirit,  of  our  statute. 

It  is  true  that  it  is  stated,  in  many  cases,  that  witnesses  are  not  in 
the  presence  of  a  testator  unless  they  are  within  his  sight ;  but  these 
statements  are  made  with  reference  lo  testators  who  can  see.  As 
most  men  can  see,  vision  is  the  usual  and  safest  test  of  presence,  but 
it  is  not  the  only  test.  A  man  may  take  note  of  the  presence  of  an- 
other by  the  other  senses,  as  hearing  or  touch.  Certainly,  if  two  blind 
men  are  in  the  same  room,  talking  together,  they  are  in  each  other's 
presence.  If  two  men  are  in  the  same  room,  conversing  together,  and 
either  or  both  bandage  or  close  their  eyes,  they  do  not  cease  to  be  in 
each  other's  presence. 

In  England,  where  the  tendency  of  the  courts  has  been  to  construe 
the  statute  with  great  strictness,  it  has  always  been  held  that  a  blind 
man  can  make  a  valid  will,  although  of  course  he  cannot  see,  if  he 
is  sensible  of  the  presence  of  the  witnesses  through  the  other  senses. 
Piercy's  Goods,  1  Rob.  Ecc.  278;  Fincham  v.  Edwards,  3  Cur.  Ecc. 
63.  It  would  be  against  the  spirit  of  our  statutes  to  hold  that,  because 
a  man  is  blind,  or  because  he  is  obliged  to  keep  his  eyes  bandaged, 
or  because,  by  an  injury,  he  is  prevented  from  using  his  sight,  he  is 
deprived  of  the  right  to  make  a  will. 

The  statute  does  not  make  the  test  of  the  validity  of  a  will  to  be 
that  the  testator  must  see  the  witnesses  subscribe  their  names;  they 
must  subscribe  "in  his  presence" ;  but  in  cases  where  he  has  lost  or 
cannot  use  his  sense  of  sight,  if  his  mind  and  hearing  are  not  affected, 
if  he  is  sensible  of  what  is  being  done,  if  the  witnesses  subscribe  in 
the  same  room,  or  in  such  close  proximity  as  to  be  within  the  line  of 
vision  of  one  in  his  position  who  could  see,  and  within  his  hearing, 
they  subscribe  in  his  presence ;  and  the  will,  if  otherwise  duly  executed, 
is  valid.  In  a  case  like  the  one  before  us,  there  is  much  less  liability 
to  deception  or  imposition  than  there  would  be  in  the  case  of  a  blind 
man,  because  the  testator,  by  holding  the  will  before  his  eyes,  could 
determine  by  sight  that  the  will  subscribed  by  the  witnesses  was  the 
same  will  executed  by  him.  We  are  of  opinion,  therefore,  that  the 
codicil  was  duly  attested  by  the  witnesses. 

The  facts  in  regard  to  the  attestation  of  the  original  will  do  not  ma- 
terially differ  from  those  as  to  the  codicil.  The  witnesses  signed  the 
will  at  a  table  nine  feet  distant  from  the  testator,  which  was  not  in 
the  same  room,  but  near  the  door  in  an  adjoining  room.  The  door 
was  open,  and  the  table  was  within  the  line  of  vision  of  the  testator, 
if  he  had  been  able  to  look,  and  the  witnesses  were  within  his  hear- 
ing. The  testator  could  hear  all  that  was  said,  and  knew  and  under- 
stood all  that  was  done ;  and,  after  the  witnesses  had  signed  it,  and 
as  a  part  of  the  res  gestae,  it  was  handed  to  the  testator,  and  he  read 
their  names  as  signed,  and  said  he  was  glad  it  was  done.  For  th/* 
Cost.  Wills— 11 


-.go  LAST  WILLS  AND  TESTAMENTS.  (Part   1 

reasons  before  stated,  we  are  of  opinion  that  this  was  an  attestation 
in  his  presence,  and  was  sufficient. 

The  result  is,  that  the  decree  of  the  justice  who  heard  the  case, 
admitting  the  will  and  codicil  to  probate,  must  be  affirmed.  Decree 
affirmed.** 


MOORE  V.  KING. 
(Prerogative   Court  of  Canterbury,   1842.     3   Curt.   243.) 

Robert  King  died  on  the  16th  of  August,  1842.  By  his  will,  dated 
the  22d  of  March,  1841,  he  appointed  C.  H.  Moore,  and  his  brother 
E.  R.  King  to  be  his  executors,  and  named  his  said  brother  his  residu- 
ary legatee. 

On  the  8th  of  August,  1842,  the  deceased,  being  confined  to  his  bed 
by  illness,  requested  his  sister,  Mrs.  Coape,  to  bring  him  materials  for 
writing,  and  upon  her  doing  so,  he  wrote  a  codicil  (A)  in  the  presence 
of  Mrs.  Coape,  and  she,  at  his  request,  subscribed  her  name  thereto  in 
his  presence ;  no  other  witness  was  present  at  the  time. 

On  the  8th  of  August,  1842,  Sir  D.  Davies,  the  medical  attendant 
of  the  deceased,  paid  him  a  visit,  on  which  occasion  the  deceased  re- 
quested Mrs.  Coape  to  give  him  the  paper  (A),  and  showing  the  same 
to  Sir  D.  Davies,  said,  "This  is  a  codicil  to  my  will,  signed  by  myself 
and  by  my  sister,  as  you  will  see  at  the  bottom  of  the  paper,  you  will 
oblige  me  if  you  will  also  add  your  signature,  two  witnesses  being 
necessary."  Sir  D.  Davies  thereupon  placed  the  paper  on  a  chest  of 
drawers  by  the  bedside  of  the  deceased,  and  subscribed  his  name 
thereto;  Mrs.  Coape,  standing  beside  him  at  the  time,  said,  pointing  to 
her  name  signed  at  the  bottom  of  the  paper,  "There  is  my  signature 
you  see,  you  had  better  place  yours  underneath." 

8  8  See  Raymond  v.  Wagner,  178  Mass.  315,  59  N.  E.  811  (1901),  where  the 
witnesses  signed  in  another  room  separated  by  an  entry  from  that  where  the 
testatrix  lay.  "The  bed  was  in  such  a  position  that  the  testatrix  by  raising 
herself  sli^iitlv  from  the  hips  could  see  into  the  room  where  the  witnesses 
were  and  could  see  the  witnesses  as  they  signed ;  that  is,  as  we  understand, 
could  see  them  in  the  act  of  writing  their  names  upon  the  paper.  It  was  doubt- 
ful whether  the  testatrix  could  have  raised  herself."  The  court  "assumed 
•  *  *  that  the  testatrix  was  conscious,  and  knew  and  heard  and  under- 
stood what  was  done,"  and  held  the  attestation  to  have  been  in  the  presence 
of  the  testatrix.  The  court  said:  "If  the  position  of  the  subscribing  witnesses 
and  of  a  testator  and  their  proximity  to  him  are  such  tliat,  but  for  some 
physical  infirmity  which  did  not  otherwise  affect  him,  he  could  see  or  hear 
what  they  were  doing,  and  if  he  was  conscious  of  and  knew  and  understood 
what  tooiv  place,  then  we  think  that  the  subscribing  witnesses  are  to  be  re- 
garded as  subscribing  in  his  presence.  It  is  not  the  matter  of  juxtaposition 
merely,  but  the  result  as  a  wliole  that  is  to  be  looked  at.  *  *  *  Certainly 
the  mere  fact  that  the  subscribing  witnesses  were  twelve  or  fifteen  feet  from 
the  testatrix  could  not  of  itself  prevent  them  from  being  in  her  presence.  A 
case  might  be  conceived  where  tlie  subscril)iiig  witness  miglit  be  in  the  line  of 
Tlsinii  of  the  testator,  but  at  such  a  distance  tliat  it  would  1)0  plain  that  they 
could  not  be  regarded  as  being  in  his  presence.  But  that  is  not  the  case 
here."    178  Mass.,  at  page  318,  59  N..E.,  at  page  812. 


Ch.  6"^  EXECUTION   OF   WRITTEN   WILLS   AND   TESTAMENTS.  163 

On  the  7th  of  November,  1842,  the  court  was  moved  to  admit  this 
paper  (A)  to  probate,  the  court  rejected  the  motion,  and  directed  the 
paper  to  be  propounded.  An  allegation  was  given  in  by  the  executor, 
Mr.  Moore,  propounding  the  paper,  and  was  opposed  by  Mr.  King 
the  other  executor  and  residuary  legatee. 

Sir  Herbert  Jenner  Fust.  The  question  before  the  court  is  one 
of  great  importance  with  regard  to  the  construction  of  the  Wills  Act 
(1  Vict.  c.  2G).  It  turns  upon  the  due  execution  of  a  paper  bequeath- 
ing personal  property,  which  is  now  regulated  by  the  same  law  as 
regulates  the  disposition  of  real  property.  The  duty  imposed  upon  the 
court  is  to  find  its  way  to  a  due  and  proper  construction  of  the  whole 
of  the  act;  not  of  one  single  isolated  clause,  but  of  the  entire  inten- 
tion of  the  Legislature  in  passing  the  act.  This  case  must  form  a 
leading  case  of  its  class;  two  other  cases,  of  a  similar  nature,  have 
been  brought  before  the  court,  but  only  on  ex  parte  motion;  unfortu- 
nately they  were  cases,  where  the  property  involved  in  the  decision 
was  so  small,  as  to  render  them  unable  to  bear  the  expense  of  liti- 
gating the  point.  As  far  as  I  am  able  to  judge,  the  present  case  dif- 
fers in  some  respects  from  both  those  cases.  In  the  Case  of  Allen, 
2  Curt.  331,  the  paper  was  attested  by  the  one  witness  alone  present 
on  one  day,  the  deceased  having  then  signed  it  in  her  presence;  on 
a  subsequent  day  it  was  signed  in  the  presence  of  a  second  witness, 
and  attested  by  that  witness  in  the  presence  of  the  first,  but  the  first 
witness  was  not  called  on  to  attest  the  second  execution.  The  court 
was  of  opinion  that  the  execution  was  not  sufficient.  The  other  case 
of  In  re  Simmonds,  3  Curt.  79,  was  very  similar. 

In  this  case,  as  has  been  observed,  there  is  this  material  distinction ; 
the  deceased  having  in  the  first  instance  signed  the  paper  in  the  pres- 
ence of  his  sister  alone,  does  on  a  subsequent  day  acknowledge  his 
signature  in  the  presence  of  his  sister,  and  his  sister  pointed  out  her 
signature  to  the  second  witness,  but  I  do  not  understand,  that  the  de- 
ceased desired  her  to  re-attest  the  acknowledgment'  of  his  signature. 
I  admit  all  that  has  been  said  as  to  the  construction  of  statutes,  and 
the  interpretation  put  upon  the  Statute  of  Frauds  as  to  signing  by 
the  testator,  but  is  the  same  interpretation  applicable  to  the  subscrip- 
tion of  the  witnesses? 

It  has  been  argued,  under  the  present  statute,  as  against  the  admis- 
sion of  this  allegation,  that  although  this  might  have  been  a  good  sub- 
scription under  the  Statute  of  Frauds,  it  is  not  sufficient  under  the 
altered  language  of  the  present  act;  on  the  other  side,  it  has  been 
said,  that  a  construction  is  to  be  put  on  this  act  the  same  as  if  on  the 
Statute  of  Frauds;  but  it  must  be  remembered,  that  the  doubts,  ex- 
pressed by  judges  of  courts  of  law  and  equity  on  the  Statute  of 
Frauds,  led  to  the  introduction  of  the  present  act.  It  has  been  well 
said,  that  the  1  Vict.  c.  26,  is  not  an  original  act,  but  an  act  to  amenci 
a  former  law;    so  it  is — it  is  an  act  to  amend  a  former  law,  for  re- 


164  LAST  WILLS  AND  TESTAMENTS.  (Part   1 

moving  all  doubts  whatever  existing  with  regard  to  that  law,  and  I 
find  in  the  9th  section  of  the  new  act,  a  considerable  departure  from 
the  language  of  the  corresponding  section  (5th)  of  the  Statute  of 
Frauds. 

The  language  of  the  9th  section  of  1  Vict,  is  expressly  prohibitory: 
"No  will  shall  be  valid  unless  it  be  in  writing,  and  signed  at  the  foot 
or  end  thereof" — clearly  thereby  intending  to  remove  all  doubts,  in 
regard  to  the  construction  of  the  Statute  of  Frauds,  as  to  signing  by 
putting  the  testator's  name  at  the  beginning  of  the  will — "and  such 
signature  shall  be  made  or  acknowledged  by  the  testator."  It  had  been 
formerly  doubted,  under  the  Statute  of  Frauds,  whether  an  acknowl- 
edgment of  the  signature  was  sufficient,  whether  the  will  must  not  be 
actually  signed  in  the  presence  of  the  witnesses ;  here  again,  all  doubt  ^ 
is  removed  by  the  present  section.  Under  the  Statute  of  Frauds  it 
had  been  held,  that  the  witnesses  need  not  be  all  present  at  the  same 
time,  the  signature  might  be  acknowledged  to  the  three  or  more  wit- 
nesses at  different  times ;  again,  by  the  present  act,  all  doubt  on  that 
point  is  removed,  the  witnesses  must  be  present  "at  the  same  time." 

Now,  when  I  clearly  find,  that  the  object  of  this  act  is  to  remove 
every  possible  doubt — thereby  taking  away  all  latitude  and  discretion 
in  its  interpretation — and  that  it  expressly  provides  that  the  two  wit- 
nesses, who  are  to  be  present  at  the  same  time,  shall  attest  and  sub- 
scribe, can  I  hold  that  the  one  may  attest  and  subscribe  on  one  day, 
and  acknowledge  his  or  her  signature  on  a  subsequent  day?  I  am  in- 
clined to  think  that  the  act  is  not  complied  with,  unless  both  witnesses 
shall  attest  and  subscribe  after  the  testator's  signature  shall  have  been 
made  and  acknowledged  to  them  when  both  are  actually  present  at  the 
same  time.  If  the  one  witness  has  previously  subscribed  the  paper, 
and  merely  points  out  her  signature  when  the  testator  acknowledges 
his  signature  in  her  presence,  and  in  that  of  the  other  witness  which 
latter  witness  alone  then  subscribes,  that  I  hold  not  sufficient;  I  have 
no  explanation  why  the  first  witness  did  not  re-subscribe.  The  act 
says  the  testator  may  acknoAvledge  his  signature,  but  does  not  say 
that  the  witnesses  may  acknowledge  their  subscription.  I  reject  the 
allegation.*** 

♦  0  See  Wyatt  v.  Berry,  [1893]  P.  5:  Brown  v.  Skirrow,  [1902]  P.  3.  The 
mutual  presence  of  witnesses  is  required  in  a  few  American  jurisdictions. 
Rolierts  v.  Welcli.  4G  Vt.  1G4  (1873).  See,  also.  Tonne's  Appeal.  57  Conn.  182, 
17  Atl.  926.  4  L.  R.  A.  45,  14  Am.  St.  Rep.  94  (1889).  On  the  objection  to  sucb 
a  requirement,  see  Parramore  v.  Taylor,  11  Grat.  (Va.)  220,  255  (1854). 


Ch.  6)  BXBCUTIOIN   OH  WRITTEN   WILLS  AND  TESTAMENTS.  165 


FLEMING  V.  MORRISON. 


(Supreme  Judicial  Court  of  Massachusetts,  1904.    187  Mass.  120.  72  N,  E.  499 

105  Am.  St.  Rep.  386.) 

Francis  M.  Butterfield  had  Sidney  S.  Goodrich  draw  up  a  will  for 
Butterfield  leaving  all  of  Butterfield's  property  to  Mary  Fleming. 
Butterfield  then  signed  it  and  had  Goodrich  sign  as  a  witness.  Later 
he  had  two  other  people  sign  as  witnesses.  The  further  facts  appear 
in  the  opinion.  The  will  having  been  admitted  to  probate,  this  ap- 
peal was  brought. 

LoRiNG,  J."  *  *  *  Xhe  finding  that,  before  Butterfield  and 
Goodrich  "parted,"  Butterfield  told  Goodrich  that  the  instrument  which 
had  been  signed  by  Butterfield  as  and  for  his  last  will  and  testament, 
and  declared  by  him  to  be  such  in  the  presence  of  Goodrich,  and  at- 
tested and  subscribed  by  Goodrich  as  a  witness,  "was  a  fake,  made 
for  a  purpose,"  is  fatal  to  the  proponent's  case.  This  must  be  taken 
to  mean  that  what  had  been  done  was  a  sham.  This  is  not  cured  by  the 
further  finding  that  what  Butterfield  meant  by  this  was  "that  he  did 
not  intend  to  complete  the  instrument  by  having  it  attested  and  sub- 
scribed by  at  least  two  other  witnesses,  and  that  the  purpose  referred 
to  by  him  was  to  induce  said  Fleming  to  allow  him  (Butterfield)  to 
sleep  with  her." 

This  is  not  a  finding  that  Butterfield  intended  to  sign  the  instru- 
ment before  Goodrich  as  and  for  his  last  will  and  testament,  leaving 
the  further  execution  to  depend  on  future  events.  Much  less  is  it  a 
finding  that  Butterfield  changed  his  mind  after  he  had  signed,  and 
had  had  Goodrich  attest  and  subscribe  the  instrument.  The  whole 
finding,  taken  together,  amounts  to  a  finding  that  Butterfield  had  not 
intended  the  transaction  which  had  just  taken  place  to  be  in  fact  what 
it  imported  to  be ;  that  is  to  say,  a  finding  that  when  Butterfield  signed 
the  instrument,  and  asked  Goodrich  to  attest  and  subscribe  it  as  his 
will,  he  did  not,  in  fact,  then  intend  it  to  be  his  last  will  and  testa- 
ment, but  intended  to  have  Mary  Fleming  think  that  he  had  made  a 
will  in  her  favor  to  induce  her  to  let  him  sleep  with  her.    *    *     * 

The  punctum  temporis  in  case  of  a  will  is  when  it  is  signed,  or, 
having  been  previously  signed,  when  the  signature  is  acknowledged  in 
the  presence  of  three-  or  more  witnesses.  And  where  that  is  done 
before  each  witness  separately,  as  it  may  be  done  in  this  common- 
wealth (Chase  v.  Kittredge,  11  Allen,  49,  87  Am.  Dec.  687),  the  ani- 
mus testandi  must  exist  when  it  is  signed  or  acknowledged  before,  and 
attested  and  subscribed  by,  each  of  the  necessary  three  witnesses.  If 
this  is  not  done,  the  statutory  requirements  have  not  been  complied 
with. 

41  The  statement  of  facts  Is  abbreviated,  and  part  only  of  the  opinion  l8 
given. 


166  LAST  WILLS  AND  TESTAMENTS.  (Part   1 

Assuming  that  the  acknowledgment  animo  testandi  of  a  signature 
not  originally  made  with  that  animus  is  enough,  the  will  in  the  case 
at  bar  would  have  been  duly  executed  had  Butterfield  subsequently 
acknowledged  the  instrument  before  three  in  place  of  two  additional 
witnesses.  But  he  did  not  do  so.  The  instrument,  having  been  ac- 
knowledged and  attested  and  subscribed  by  two  witnesses  only,  is  not 
a  valid  will,  within  Rev.  Laws,  c.  135,  §  i,    *    *     * 

Decree  to  be  entered  reversing  decree  of  probate  court,  and  dis- 
allowing the  instrument  as  the  will  of  Butterfield. 


SECTION  6.— THE  ORDER  OF  SIGNING 


HINDMARSH  v.  CHARLTON. 
(House  of  Lords,  1861.    8  H.  L.  Cas.  160.) 

This  was  an  appeal  from  a  decision  awarding  the  plaintiff  letters  of 
administration  of  the  personal  estate  of  Joseph  Hindmarsh,  deceased. 
The  appellant  claimed  that  there  was  a  valid  will  of  December  17, 
1857,  under  which  he  was  residuary  legatee. 

The  evidence  of  Mr.  Frederick  William  Napoleon  Wilson,  sur- 
geon, one  of  the  witnesses,  was:  "On  the  forenoon  of  the  17th  De- 
cember, 1857,  I  saw  Mr.  Hindmarsh.  I  was  asked  by  him  to  sign  his 
will  as  a  witness,  and  the  will  was  brought  out,  both  parts.  He  looked 
at  it,  and  said  that  was  his  will.  I  wrote  at  the  bottom,  'Witness  to 
the  above  will  and  testament  and  signature,'  and  then  my  name,  'Fred. 
\\'m.  Nap.  Wilson,'  on  both  papers.  In  the  afternoon.  Dr.  White 
came.  In  the  room  Dr.  White  examined  the  patient  as  to  his  health. 
The  doctor  and  I  then  went  into  the  other  room,  where  we  had  a 
consultation.  I  had  suggested  to  Hindmarsh  before  we  left  the  room, 
that  he  had  better  have  another  witness.  Dr.  White  took  the  will  in 
his  hand,  and  we  went  back  to  the  room  where  Hindmarsh  was.  Dr. 
White  asked  Hindmarsh  if  that  was  his  will.  He  said,  'Well,  I  can't 
see  very  well,  get  me  my  spectacles.'  The  housekeeper  gave  him  his 
spectacles,  and  he  sat  up  in  the  bed,  and  looked  at  the  paper,  and  said, 
'Yes,  that  is  my  will,  and  this  is  my  signature.'  At  a  small  table,  at 
the  head  of  the  bed,  and  close  to  the  bed,  Dr.  White  signed  his  name. 
After  he  had  signed  it,  I  took  the  papers  and  went  across  to  the 
window,  where  there  was  another  table,  and  sat  down  in  an  arm- 
chair; and  then,  after  some  conversation  about  the  date  being  added, 
I  distinctly  remember  retouching  my  name,  by  putting  a  cross  on  the 
F  on  the  paper  which  is  uppermost,  and  then  I  added  the  date  in  both 
wills,  and  then,  I  believe,  the  documents  were  both  given  to  the  house- 
keeper." 


Ch.  6)  EXECUTION   OF    WRITTEN   WILLS  AND  TESTAMENTS.  167 

On  cross-examination,  he  said,  "I  very  often  omit  to  put  a  cross 
at  all,  and  where  I  find  it  has  not  been  done  I  always  put  it.  I  had 
noticed  the  omission  of  the  cross.  I  had  always  been  in  the  habit 
of  supplying-  the  omission.  This  was  merely  in  pursuance  of  my  hab- 
it. *  *  *  I  thought  it  was  better  to  complete  the  name.  I  thought 
adding  the  date  was  equal  to  a  repetition  of  the  signature.  I  think  1 
had  no  other  intention.  It  was  by  the  date  I  intended  to  repeat  my 
signature.  My  sole  object  was  to  supply  the  omission,  to  make  the 
name  complete.  I  was  attesting  the  will,  and  I  thought  it  necessary 
to  have  a  complete  signature.  My  object  was  to  make  the  signature 
of  the  morning  complete." 

The  cause  was  heard  before  the  Judge  Ordinary,  and  on  the  18th 
May,  1858,  judgment  was  pronounced  in  favor  of  the  plaintiff  in  the 
suit,  on  the  ground  that  the  facts  proved  did  not  amount  to  a  due  at- 
testation of  the  will  according  to  the  provisions  of  the  1  Vict.  c.  26. 
The  verdict  for  the  defendant  was,  therefore,  ordered  to  be  set  aside, 
and  a  verdict  entered  for  the  plaintiff.  This  was  an  appeal  against 
that  decision. 

The  Lord  Chancellor  [Lord  Campbell]."  *  *  *  The  Act  of 
1  Vict.  c.  26,  §  9,  requires  that  a  will  to  be  valid  "shall  be  signed  at 
the  foot,  or  end  thereof,  by  the  testator,  or  by  some  other  person  in 
his  presence  and  by  his  direction;  and  such  signature  shall  be  made 
or  acknowledged  by  the  testator  in  the  presence  of  two  or  more  wit- 
nesses present  at  the  same  time;  and  such  witnesses  shall  attest  and 
shall  subscribe  the  will  in  the  presence  of  the  testator." 

It  is  settled  by  the  case  of  White  v.  The  British  Museum,  6  Bing. 
310,  and  other  decisions  to  the  same  effect,  that  after  the  will  has  been 
signed  or  acknowledged  by  the  testator  in  the  presence  of  both  the 
witnesses,  there  must  be  the  subscription  of  the  witnesses  in  the  pres- 
ence of  the  testator.  The  question  in  this  case  is,  whether  that  which 
took  place  was  a  subscription  of  the  witnesses,  whose  subscription 
is  in  question,  or  not. 

I  will  lay  down  this  as  my  notion  of  the  law :  that  to  make  a  valid 
subscription  of  a  witness,  there  must  either  be  the  name  or  some 
mark  which  is  intended  to  represent  the  name.  But  on  this  occasion 
the  name  is  not  written,  nor  do  I  think  that  there  was  anything  written 
that  was  meant  to  represent  the  name.  The  horizontal  stroke  made 
by  the  witness  was  merely  intended  to  perfect  the  letter  F  in  the  same 
manner  as  if  he  had  perfected  the  letter  i  by  putting  a  dot  over  it, 
which  he  had  not  dotted  in  the  morning.  Now,  can  that  be  consid- 
ered as  amounting  to  a  subscription? 

It  was  an  acknowledgment  by  him  of  his  former  signature  written 
in  the  morning,  but  it  is  not  a  new  subscription.  It  has  been  solemnly 
determined  that  an  acknowledgment  by  a  witness  of  his  signature  is 

42  The  statement  of  facts  is  abbreviated,  the  concurring  opinion  of  Lord 
Cranworth  is  omitted,  and  parts  only  of  the  other  opinions  are  given. 


1G8  LAST   WILLS   AND   TESTAMENTS.  (Part   1 

not  sufficient.  When  I  was  at  the  bar,  there  was  a  question  whether 
the  acknowledgment  of  the  signature,  by  a  witness  putting  a  dry  pen 
over  it  would  be  sufficient,  but  since  that  time  it  has  been  decided  that 
it  would  not  be  sufficient;  but  this  does  not,  in  my  opinion,  amount 
to  a  subscription,  because  whether  the  i  was  dotted,  or  the  horizontal 
stroke  was  put  to  the  F,  to  perfect  the  word,  it  was  not  intended  that 
either  the  dot  or  the  horizontal  stroke  should  represent  the  name ; 
the  name  was  written  in  the  morning,  and  that  would  continue  both 
till  and  after  the  evening,  as  the  subscription  of  the  witness. 

I  regret  very  much  that  we  are  compelled  to  hold  this  instrument 
to  be  an  invalid  will,  but  we  are  constrained  so  to  do  by  the  act  of 
Parliament;  and  therefore  I  must  advise  your  Lordships  that  this 
appeal  be  dismissed. 

Lord  Chelmsford.  I  regret  to  have  to  agree  with  my  two  noble 
and  learned  friends,  that  the  will  was  not  duly  executed,  as  required 
b,y  1  Vict,  c,  26.  To  render  a  will  valid,  the  signature  or  acknowledg- 
ment of  the  testator  must  be  in  the  presence  of  two  witnesses,  present 
at  the  time,  and  the  witnesses  must  attest  and  subscribe  the  will  in  the 
presence  of  the  testator.     *     *     * 

If  Mr.  Wilson  in  the  morning  had  left  his  signature  incomplete  by 
the  omission,  for  instance,  of  his  surname  which  he  had  added  in  the 
afternoon,  that  would  have  been  a  subscription  which  would  have 
satisfied  the  requisitions  of  the  act.  For  there  would  really  have  been 
only  one 'Complete  subscription.  But  the  omission  of  the  cross  to  the 
F  in  hi/ Christian  name,  did  not  make  the  signature  imperfect.  For 
Mr.  Wilson  states,  that  he  very  often  omitted  to  put  the  cross  at  all; 
and/ne  did  not  add  the  cross  to  complete  his  signature,  so  as  virtually 
t(^ubscribe  anew,  but  merely  in  pursuance  of  his  habit  of  supplying 

e  omission  when  he  noticed  it.    *     *    * 

The  Lord  Chancellor.    The  appeal  will  be  dismissed,  without  costs. 

Decree  affirmed,  and  appeal  dismissed,  without  costs. 


.  BROOKS  V.  WOODSON  et  al. 

\  (Supreme  Ck)urt  of  Georgia,  185)1.    87  Ga.  379,  13  S.  E.  712,  14  L.  R.  A.  IGO.) 

\  Blkcklev,  C.  J.*  There  is  nothing  to  distinguish  this  case  from 
Ouffie  V.  Corridon,  40  Ga.  "122,  except  that  in  the  execution  and  attesta- 
tion of  this  will  there  was  but  one  transaction,  the  witnesses  all  sub- 
scribing the  unsigned  will  in  the  presence  of  the  testator,  and  he,  at 
the  same  time  and  place,  and  immediately  after  they  affixed  their  sig- 
natures, signing  the  document  in  their  presence.  In  Duffie  v.  Corridon 
there  were  two  interviews,  at  the  first  of  which  two  of  the  witnesses 
(together  with  another  who  was  not  afterwards  present)  subscribed, 
and  at  the  second  the  testator  and  the  third  witness. 

Tho  statement  of  facts  is  omitted.    Tlie  testator  signed  bj'  mark. 


*  T 


Ch.  6)  EXECUTION   OF   WRITTEN   WILLS   AND   TESTAMENTS.  169 

But  is  this  difference  in  the  facts  of  the  two  cases  material?  The 
doctrine  distinctly  held  by  the  court  in  ruling  Duffie  v.  Corridon  is 
that,  until  the  testator  signs,  there  is  nothing  to  attest ;  the  signature 
of  the  testator  being  the  principal,  if  not  the  only,  matter  to  which 
the  attestation  contemplated  by  law  applies.  It  is  obvious  that,  if  this 
be  the  true  reason  why  the  witnesses  cannot  subscribe  their  names 
until  after  the  testator  has  signed  his,  it  is  of  no  consequence,  when 
the  form  of  attesting  an  unsigned  will  is  gone  through  with,  whether 
on  the  same  occasion  of  the  testator's  added  signature  or  on  a  previ- 
ous occasion.  In  either  case,  the  attesting  act  would  be  performed 
when  there  was  no  signature  in  existence  to  be  attested,  and  therefore 
no  subject-matter  to  which  the  act  could  apply.  To  witness  a  future 
event  is  equally  impossible,  whether  it  occur  the  next  moment  or  the 
next  week. 

We  rule  the  present  case  on  the  authority  of  the  prior  one  above 
cited;  being  satisfied,  after  careful  examination,  that  to  abide  by  the 
principle  of  that  decision  we  must  regard  the  order  of  time  in  which 
the  respective  signatures  occur,  rather  than  the  interval  of  time  by 
which  they  are  separated.  The  manifest  teaching  of  Duffie  v,  Cor- 
ridon is  that  the  testator  must  sign  first.  That  teaching  is  not  fol- 
lowed, but  directly  violated,  when  the  witnesses  sign  first.  Judgment 
[refusing;  probate]  affirmed.*' 

43  "It  Is  quite  plain  that  if  the  true  interpretation  of  our  statute  is  that 
the  witnesses  are  to  attest,  by  their  subscription,  the  testator's  signature,  or 
acknowledgment  of  signature,  an  instant  of  precedence  on  their  part  will  ren- 
der that  impossible.  There  is  no  force  in  the  argument  that,  in  case  of  an 
uninterrupted  transaction,  the  orderly  course  of  procedure  is  not  material. 
The  case  is  not  one  of  a  rule  that  may  be  relaxed,  but  one  of  interpretation 
of  language  which,  in  the  nature  of  things,  must  be  rigid.  Once  it  is  de- 
termined what  the  words  of  the  statute  mean,  they  must,  under  all  circum- 
stances, have  that  meaning.  It  is  not  permissible  to  hold  that  'follow'  can 
ever  mean  'precede.'  Besides,  such  a  judicial  modification  of  the  statute — 
for  that  it  must  be — would  be  unsafe.  Witnesses  subscribing  a  will,  on  the 
faith  that  the  testator  will  immediately  sign  it,  can  retain  no  dominion  over 
the  paper,  and  can  in  no  way  recall  their  act  or  advertise  its  abortion  if 
the  testator  fails  in  his  part.  Protection,  as  well  of  the  witnesses  as  of  the 
testator,  demands  that  there  shall  be  signature  before  attestation.  Argu- 
ments based  on  a  loose  practice  with  other  than  testamentary  writings  is 
valueless,  for  their  validity  does  not  depend  on  due  attestation."  Collins,  J., 
in  Lacey  v.  Dobbs,  63  N.  J.  Eq.  325,  341,  50  Atl.  497,  504,  55  L.  R.  A.  580, 
92  Am.  St.  Rep.  667  (1901).  See  Lane  v.  Lane,  125  Ga.  386,  54  S.  B.  90, 
114  Am.  St.  Rep.  207  (1906) ;  Marshall  v.  Mason,  176  Mass.  216,  57  N.  B.  340, 
79  Am.  St.  Rep.  .305  (1900) ;  Hindmarsh  v.  Charlton,  reported  ante,  p.  1^6. 
See,  also,  114  Am.  St.  Rep.  234,  note;  5  Am.  &  Eng.  Ann.  Cas.  463,  note;  12 
Prob.  Rep.  Ann.  286,  note. 

"We  thiuk,  in  the  absence  of  clear  proof  that  the  witness  or  witnesses 
signed  before  the  signing  of  the  testator,  it  should  be  presumed  that  the  tes- 
tator si<^ned  first.  This  would  be  the  usual  order  of  signature."  Taylor,  J., 
in  Allen  v.  Griffin,  69  Wis.  529,  5.33,  35  N.  W.  21,*22  (1887). 

Where  the  testator  and  one  witness  signed  the  will  in  the  presence  of  each 
other,  and  then  the  witness  copied  it,  and  signed  the  attestation  clause  on 
the  copy  and  left  the  copy  at  the  home  of  the  testator,  who  signed  it,  and  had 
the  other  witness  sign  it,  it  was  held  that  the  two  copies  did  not  constitute 
one  will;    that  neither  copy  was  executed,  as  neither  was  subscribed  in  the 


170     A  LAST   WILLS  AND  TESTAMENTS.  (Part  1 


GIBSON  V.  NELSON  et  al. 

(Supreme  Court  of  Illinois,  1899.    181  111.  122,  54  N.  E.  901,  72  Am.  St.  Rep. 

254.) 

Carter,  J.  Upon  their  bill  brought  to  contest  the  last  will,  and 
the  probate  thereof,  of  Leander  E.  Nelson,  deceased,  the  appellees 
obtained  a  decree  based  upon  a  verdict  of  the  jury  that  the  will  had 
not  been  signed  by  the  testator  when  the  attesting  witnesses  signed 
their  names  as  witnesses  to  the  instrument,  and  that  it  was  not  the 
last  will  of  the  deceased,  and  it  was  accordingly  set  aside.  The  record 
is  now  before  us  on  the  appeal  of  James  W.  Gibson,  the  principal 
legatee  and  devisee. 

While  there  was  some  controversy  of  fact,  yet  we  think  the  effect 
of  the  testimony  of  the  subscribing  witnesses  was  that  they  subscribed 
their  names  as  witnesses  to  the  instrument,  as  the  last  will  of  the 
testator,  at  his  request  and  in  his  presence,  but  that  he  did  not  sign 
the  will  until  after  the  signatures  of  the  witnesses  had  been  affixed; 
that  the  witnesses  and  the  testator  were  all  present  at  the  time;  that 
it  was  on  the  same  occasion,  and  was  one  transaction,  completed  when 
all  were  present,  but  that  in  the  mere  order  of  signing  the  witnesses 
preceded  the  testator. 

On  behalf  of  the  contestants,  the  court  gave  to  the  jury  the  follow- 
ing instruction:  "The  jury  are  instructed  that,  in  order  that  a  will  be 
properly  attested  and  be  a  valid  will,  it  is  necessary  that  the  attest- 
ing witnesses  subscribe  their  names  to  the  same  as  witnesses  in  the 
presence  of  the  testator  and  at  his  request,  and  that  the  name  of  the 
testator  be  signed  to  the  instrument  before  the  signatures  of  the  at- 
testing witnesses  are  attached;  and  you  are  instructed  that  if  you 
find,  from  the  evidence,  that  the  signature  of  Leander  E.  Nelson  was 
not  attached  to  said  instrument,  so  offered  here  as  his  will,  until  after 
the  names  of  the  attesting  witnesses  were  attached  thereto,  then  said 
instrument  is  not  the  last  will  and  testament  of  said  Nelson,  and  it 
is  your  duty  so  to  find." 

The  question  is  thus  presented  for  decision  whether,  under  our 
statute  of  wills,  an  instrument  intended  as  a  will,  appearing  to  have 
been  executed  and  witnessed  with  all  the  formalities  required  by  the 
statute,  must  fail  to  take  effect  as  a  will  merely  because  the  act  of  the 
testator  in  signing  the  will  followed  that  of  the  witnesses,  though  done 
in  their  presence,  on  the  same  occasion,  and  as  a  part  of  one  entire 
transaction. 

Section  2  of  the  act  in  regard  to  wills,  so  far  as  it  affects  this  ques- 
tion, provides:    "All  wills     *     *     *     by  which  any  lands,     *     *     * 

presence  of  the  testator  by  two  witnesses,  as  required  by  the  statute;  and 
that  the  attestation  on  the  original  could  not  count  on  the  second,  because 
not  on  the  sheet  of  paper  containing  testator's  signature,  nor  physically  con- 
nected therewith.  In  re  Baldwin,  146  N.  0.  25,  59  S.  E.  163,  V25  Am.  St. 
Rep   4G6  '1907).     Compare  Notes  v.  Doyle,  32  App.  D.  O.  413  (1909). 


Ch.  6^  EXECUTION   OF  WRITTEN   WILLS  AND   TESTAMENTS.  171 

goods  and  chattels  are  devised  shall  be  reduced  to  writing  and  signed 
by  the  testator  or  testatrix,  or  by  some  person  in  his  or  her  presence 
and  by  his  or  her  direction,  and  attested  in  the  presence  of  the  testa- 
tor or  testatrix  by  two  or  more  credible  witnesses,  two  of  whom  de- 
claring on  oath  or  affirmation,  before  the  county  court  of  the  proper  _ 
county,  that  they  were  present  and  saw  the  testator  or  testatrix  sign 
said  will  *  *  *  in  their  presence,  or  acknowledge  the  same  to  be 
his  or  her  act  and  deed,  and  that  they  believed  the  testator  or  testatrix 
to  be  of  sound  mind  and  memory  at  the  time  of  signing  or  acknowl- 
edging the  same,  shall  be  sufficient  proof  of  the  execution  of  said  will 
*  "*  **  to  admit  the  same  to  record ;  *  *  *  and  every  will,  *  *  * 
when  thus  proven  to  the  satisfaction  of  the  court,  shall,  together  with 
the  probate  thereof,  be  recorded,  *  *  *  and  shall  be  good  and 
available  in  law,"  etc. 

It  will  be  noticed  that  the  statute  does  not  in  terms  require  the  sub- 
scribing witnesses  to  attest  or  certify  that  the  will  was  signed  by  the 
testator  before  they  subscribed  their  own  names;  and  in  Hobart  v. 
Hobart,  154  111.  610,  39  N.  E.  581,  45  Am.  St.  Rep.  151,  we  held  that, 
where  the  testator  acknowledged  the  will  to  be  his  act  and  deed,  that 
was  sufficient,  without  acknowledging  specifically  and  in  terms  that 
he  had  signed  it ;  that,  as  it  would  not  be  a  will  without  his  signature, 
it  would,  in  the  absence  of  proof,  be  presumed  from  his  statement  that 
it  was  his  will,  and  that  he  had  signed  it.  In  that  case  it  was  pointed 
out  that  decisions  based  upon  the  English  statute,  and  the  statutes 
of  New  York  and  other  states,  requiring  specifically  that  the  signature 
be  made  or  acknowledged  in  the  presence  of  the  witnesses,  were  not 
applicable  here,  where  the  statute  requires  that  the  testator  acknowl- 
edged merely  the  will. 

It  cannot,  of  course,  be  presumed  in  the  case  at  bar  that  at  the  pre- 
cise moment  when  the  witnesses  subscribed  their  names  to  the  instru- 
ment the  testator  had  signed  it,  for  they  testified  to  the  contrary  on 
the  trial  below ;  but  he  signed  it  in  their  presence,  as  required  by  the 
statute,  and  the  several  acts  of  signing  by  the  testator  and  witnesses 
took  place  on  the  same  occasion,  and  constituted  one  transaction,  viz. 
the  execution  and  attestation  of  the  will.  Must  the  instrument  be 
held  inoperative  as  a  will  merely  because  the  testator  and  the  wit- 
nesses did  not  observe  the  usual  order,  in  point  of  time,  in  signing 
their  names?  To  so  hold  would,  in  our  opinion,  require  a  greater 
degree  of  nicety  in  the  execution  of  wills  than  is  required  by  the 

statute. 

Suppose  the  draftsman  of  a  will  has  read  it  over  to  the  testator, 
and  the  testator,  having  approved  it,  requests  him  to  subscribe  his 
name  as  a  witness,  and  he  does  so  at  the  time  and  in  the  presence 
of  the  testator,  and  then  hands  the  pen  to  the  testator,  who  there- 
upon signs  the  will;  is  there  any  provision  of  the  statute  or  rule 
of  law  which  would   require  the  courts   to  take  notice  of  the   dif- 


172  LAST   WILLS   AND   TESTAMENTS.  (Part   1 

ference  in  the  moment  of  time  intervening  between  the  two  acts  of 
signing,  where  both  were  parts  of  one  transaction?  We  know  of 
none.  It  would  not  be  physically  impossible  for  the  testator  and  the 
witnesses  to  sign  at  the  same  time,  yet,  under  the  rule  contended  for 
and  as  held  by  the  court  below,  the  will  would  be  invalid  because 
the  testator  did  not  sign  first.  Undoubtedly,  the  proper  order  is  for 
the  testator  to  sign  first,  for  after  the  witnesses  had  signed  he  might 
never  sign,  or  might  sign  on  some  other  occasion  or  out  of  their  pres- 
ence, which  would  not  be  a  compliance  with  the  statute;  but  we  are 
not  prepared  to  hold  that  the  validity  of  the  instrument  as  a  will  can 
be  made  to  turn  upon  the  mere  order  in  which  the  signatures  are  at- 
tached to  the  instrument,  where  all  are  attached  at  the  same  time. 

We  are  referred  to  cases,  both  English  and  American,  which  have 
so  decided,  but  we  do  not  regard  the  reasoning  employed  satisfactory 
when  applied  to  a  case  arising  under  our  statute. 

In  Chase  v.  Kittredge,  11  Allen  (Mass.)  63,  87  Am.  Dec.  687,  while 
it  was  said  that  a  will  was  not  sufficiently  witnessed  where  the  wit- 
nesses signed  their  names  before  the  testator  signed,  still  the  fact  was, 
in  that  case,  that  one  of  the  witnesses  had  not  only  signed  his  name 
before  the  testator  had,  but  had  signed  it  out  of  the  presence  of  the 
testator.  Still,  it  has  undoubtedly  been  held  in  many  cases  that  a  will 
signed  by  the  attesting  witnesses  before  it  was  executed  by  the  tes- 
tator, though  on  the  same  occasion,  is  not  entitled  to  probate.  We  are 
of  the  opinion,  however,  that,  as  applicable  to  cases  arising  under  our 
statute,  cases  holding  to  the  opposite  view  are  sustained  by  the  better 
reasoning. 

In  O'Brien  v.  Galagher,  25  Conn.  229,  the  court  said:  "Where, 
as  in  the  present  case,  witnesses  are  called  to  attest  the  will,  and,  be- 
ing informed  what  the  instrument  is,  subscribe  their  names  thereto 
as  witnesses,  and  the  testator  on  his  part  and  in  their  presence  duly 
executes  the  instrument  as  his  will,  and  all  is  done  at  one  and  the 
same  time,  and  for  the  purpose  of  perfecting  the  instrument  as  a  will, 
we  cannot  say  that  it  is  not  legally  executed,  merely  because  the  names 
of  the  witnesses  were  subscribed  before  that  of  the  testator." 

So,  also,  in  Rosser  v.  Franklin,  6  Grat.  (Va.)  1,  52  Am.  Dec.  97,  it 
was  held  that  "the  mere  fact  whether,  in  the  order  of  time,  the  tes- 
tatrix made  her  mark  before  or  after  the  subscription  of  the  witnesses, 
is,  under  the  circumstance,  in  no  wise  material,  insomuch  as  the  whole 
transaction  must  be  regarded  as  one  continuous,  uninterrupted  act, 
conducted  and  completed  within  a  few  minutes,  while  all  concerned  in 
it  were  present,  and  during  the  unbroken  supervising  attention  of  the 
subscribing  witnesses." 

So,  too,  in  Miller  v.  McNeill,  35  Pa.  217,  78  Am.  Dec.  333,  the 
court  said :  "Our  statute  contemplates,  undoubtedly,  a  signature  by 
the  testator,  and  then  a  signing  by  witnesses  in  attestation  of  the  sig- 
nature ;     *     *     *     but  when  a  transaction  consists  of  several  parts 


Ch.  6)  BJXBCUTION   OF   WRITTEN   WILLS  AND   TESTAMENTS.  173 

all  of  which  occur  at  the  same  moment  and  in  the  same  presence,  are 
we  required  to  undo  it  because  it  did  not  occur  in  the  orderly  suc- 
cession which  the  law  contemplates?  No  language  of  our  statute  of 
wills  imposes  any  such  necessity  upon  us,  and  we  would  not  decide 
anything  so  unreasonable  except  under  stress  of  very  positive  statu- 
tory language.  The  execution  and  attestation  of  the  will  were  con- 
temporaneous, or,  rather,  simultaneous,  acts,  and  we  will  not  regard 
the  question  who  held  the  pen  first, — the  testator  or  his  witnesses." 

In  1  Redf.  Wills,  *226,  it  is  said:  "The  particular  order  of  the  sev- 
eral requisites  to  the  valid  execution  of  a  testament  is  not  at  all  ma- 
terial, provided  that  they  be  done  at  the  same  time  and  as  a  part  of 
the  same  transaction." 

These  authorities,  and  others  following  them,  hold,  in  our  opinion, 
the  more  reasonable  rule.  To  invalidate  such  a  will,  otherwise  prop- 
erly executed  and  attested,  would  enable  a  witness,  after  the  lapse 
of  many  years,  to  defeat  its  operation  by  proof  of  an  unimportant 
fact  which  few  could  then  remember.  How  may  witnesses  to  wills, 
unaided  by  presumptions  and  inferences  which  arise  from  the  ordi- 
nary cause  of  procedure  in  the  execution  of  wills,  could  remember  as 
a  fact  that  the  testator  signed  the  will  first? 

While  it  is  true,  as  contended,  that  the  instrument  is  not  a  will  until 
it  has  been  executed  by  the  testator,  and  cannot  be  attested  as  a  will 
by  the  witnesses  without  such  execution,  it  is  also  true  that  it  is  not 
a  complete  will  until  it  has  been  attested  by  the  necessary  witnesses, 
the  statute  requiring  both.  While  this  attestation  required  by  our 
statute  includes  the  subscription  of  their  names  by  the  subscribing 
witnesses,  it  means  much  more ;  that  is,  that  they  bear  witness  and 
certify  to  the  facts  required  by  the  statute  to  make  a  valid  will.  Swift 
v.  Wiley,  1  B.  Mon.  (Ky.)  114. 

The  mere  physical  act  of  signing  their  names  does  not  constitute 
the  whole,  nor  the  most  important  part,  of  the  duty  of  attesting  wit- 
nesses. If  all  of  the  several  acts  required  by  the  statute  are  done  up- 
on the  same  occasion,  in  the  presence  of  the  testator  and  the  attest- 
ing witnesses,  and,  as  said  in  the  case  cited  above,  under  their  unbroken 
supervising  attention  and  as  parts  of  one  entire  transaction,  we  can- 
not hold  that  the  instrument  is  rendered  inoperative  as  a  will  by 
merely  proving  the  fact  that  the  signatures  of  the  witnesses  were  af- 
fixed before  the  signature  of  the  testator. 

In  the  case  at  bar  this  fact  did  not  appear  by  the  testimony  of  the 
subscribing  witnesses  given  in  the  probate  court  when  the  will  was 
admitted  to  probate,  but  they  testified  to  it  on  the  hearing  of  the  issue 
in  this  case  in  the  circuit  court.  The  will  upon  its  face  appeared  to 
have  been  properly  executed  and  witnessed,  and  the  mere  fact,  which 
appeared  by  the  evidence,  that  the  testator  signed  it  after  the  witnesses 
had  signed,  was  rendered  harmless  by  the  further  fact,  shown  by  the 
evidence,  that  these  several  acts  of  signing  were  done  at  the  same 


174  LAST   WILLS   AND   TESTAMENTS.  (Part   I 

time  and  as  parts  of  the  same  transaction.    The  court  erred  in  giving 
the  instruction  in  question. 

The  judgment  will  be  reversed,  and  the  cause  remanded.    Reversed 
and  remanded.** 


SECTION   7.— THE  WITNESSES'   SIGNATURES   AND  THE 

ATTESTATION  CLAUSE 


In  re  WALKER'S  ESTATE. 

(Supreme  Court  of  California,  1805.    110  Cal.  387,  42  Pac.  815,  30  L.  R.  A.  4G0. 

52  Am.  St.  Rep.  104.) 

Henshaw,  J.  Appeals  from  the  judgment  revoking  the  probate 
of  a  will  and  from  the  order  denying  a  motion  for  a  new  trial. 

The  facts  disclosed  by  the  evidence  without  conflict  are  as  follows : 
The  will  of  Ozias  Walker,  deceased,  was  written  by  C.  G.  Warren, 
the  attorney  at  law  of  the  testator,  "and  was  executed  in  the  presence 
of  H.  C.  White  and  C.  G.  Warren,  who  were  requested  by  the  testator 
to  attest,  as  witnesses,  its  execution.  The  requirements  of  the  stat- 
ute were  complied  with  in  all  respects  saving  that  the  witness  C.  G. 
Warren,  in  signing  his  name  as  a  witness  at  the  end  of  the  will,  in- 
advertently wrote  the  name  "C.  G.  Walker,"  thus  employing  his  own 
initials  but  the  testator's  surname. 

Upon  this  showing  the  court  revoked  the  probate  of  the  instrument, 
and  the  propriety  of  its  action  in  so  doing  is  the  sole  question  pre- 
sented upon  this  appeal. 

At  the  outset  of  this  consideration  it  is  proper  to  say  that  the  right 
to  make  testamentary  disposition  of  property  is  not  an  inherent  right 
or  a  right  of  citizenship,  nor  is  it  even  a  right  granted  by  the  consti- 

44  See  Kanfman  v.  Cau^liman.  49  S.  C.  150.  27  S.  E.  16.  61  Am.  St.  Rep. 
80S  (IS'W)-  In  re  Shapter's  Estate.  35  Colo.  578,  85  Pac.  GSS,  6  L.  R.  A.  (X. 
S)  575  117  -Vni.  St.  Rep.  210  (100.5);  Horn's  Estate  v.  Bartow  (Mich.)  125  N. 
W.  r.OT," (1010).  See,  also,  114  Am.  St.  Rep.  233,  note;  5  Am.  &  Eng.  Ann.  Cas. 
4&3.  note:    12  Prob.  Rep.  Ann.  2S0,  note. 

In  International  Trust  Co.  v.  Anthony,  45  Colo.  474,  101  Pac.  781,  22  L.  R. 
A.  (N.  S.)  1002  (1909),  both  witnosFes  saw  the  testator  execute  a  codicil  and 
publish  it  as  such,  but  only  one  subscribed  it  in  his  presence;  the  other  sub- 
scri])inR  it  some  davs  later  out  of  testator's  presence.  The  court  held  that, 
by  mentally  observing  it  in  testator's  presence  and  later  writing  his  name  as 
attesting  witness  out  of  testator's  presence,  the  witness  did  not  "attest"  it 
in  testator's  presence.  The  court  said  (Bailey,  J.) :  "We  have  neither  hesi- 
tancy nor  doubt  in  declaring,  under  the  requirements  of  our  statute  gov- 
erning the  execution,  proof,  and  probate  of  wills,  considered  at  large,  that 
the  \\ova  'attested,'  by  intent  of  the  Legislature,  includes  not  only  the  mental 
act  of  observing,  but  as  well  tlie  manual  one  of  sul)scrii)tion.  *  *  *  The 
term  comes  from  the  two  Latin  words,  'ad'  and  'testari,'  which  mean  literally 
to  witness  or  to  bear  witness,  and  by  all  authorit-y  the  term  'witnessed'  in- 
cludes 'snbscription.'  "  45  Colo.  47C,  101  Pac.  7S2.  22  L.  R.  A.  (N.  S.)  1002. 
Compare  Notes  v.  Doyle,  32  App.  D.  C.  413  (1909).  On  the  meaning  of  "wit- 
nessed" in  a  statute  about  wills,  see  In  re  Boyeus,  23  Iowa,  354  (1872). 


Ch.  6)  EXECUTION   OP  WRITTEN   WILLS   AND   TESTAMENTS.  175 

tution.  It  rests  wholly  upon  the  legislative  will,  and  is  derived  en- 
tirely from  the  statutes.  In  conferring  that  right  the  legislature  has 
seen  fit  to  prescribe  certain  exactions  and  requirements  looking  to  the 
execution  and  authentication  of  the  instrument,  and  a  compliance  with 
these  requirements  becomes  necessary  to  its  exercise.  As  has  been 
said  (In  re  O'Neil,  91  N.  Y.  521):  "While  the  primary  rule  govern- 
ing the  interpretation  of  wills  when  admitted  to  probate  recognizes 
and  endeavors  to  carry  out  the  intention  of  the  testator,  that  rule 
cannot  be  invoked  in  the  construction  of  the  statute  regulating  their 
execution.  In  the  latter  case  courts  do  not  consider  the  intention  of 
the  testator,  but  that  of  the  legislature." 

As  a  prerequisite  to  the  exercise  of  the  testamentary  right  in  this 
state,  the  legislature  has  prescribed  for  the  execution  and  authentica- 
tion of  wills  such  as  this  the  following  requirements:  "(1)  It  must 
be  subscribed  at  the  end  thereof  by  the  testator  himself,  or  some  per- 
son in  his  presence  and  by  his  direction  must  subscribe  his  name  there- 
to. (2)  The  subscription  must  be  made  in  the  presence  of  the  attest- 
ing witnesses,  or  be  acknowledged  by  the  testator  to  them  to  have 
been  made  by  him  or  by  his  authority.  (3)  The  testator  must,  at  the 
time  of  subscribing  or  acknowledging  the  same,  declare  to  the  attest- 
ing witnesses  that  the  instrument  is  his  will.  And  (4)  there  must  be 
two  attesting  witnesses,  each  of  whom  must  sign  his  name  as  a  wit- 
ness at  the  end  of  the  will,  at  the  testator's  request  and  in  his  pres- 
ence."    Civ.  Code,  §  1376. 

It  is  not  for  courts  to  say  that  these  requirements,  or  any  of  them, 
are  mere  formalities,  which  may  be  waived  without  impairing  the 
status  of  the  instrument.  It  is  not  for  courts  to  say  that  a  mode  of 
execution  or  authentication,  other  than  that  prescribed  by  law,  sub- 
serves the  same  purpose,  and  is  equally  efficient  to  validate  the  in- 
strument. The  legislative  mandates  are  supreme,  and  there  is  no 
right  to  make  testamentary  disposition  except  upon  compliance  with 
■those  mandates. 

It  may  be  freely  conceded  that  the  question  under  consideration 
is  of  a  nature  purely  technical,  but  it  is  to  be  remembered  that  the 
whole  subject-matter  of  the  execution  and  authentication  of  wills  is 
technical,  and  nothing  else ;  and  it  must  not  be  forgotten  that  the 
technicalities  are  those  which  the  lawmaking  power  has  the  right  to 
impose,  and  has  imposed,  upon  the  maker  of  a  will. 

It  will  be  noted  in  the  section  of  the  Code  above  quoted  that  the 
duty  enjoined  upon  the  testator  is  to  subscribe  the  will,  while  that  im- 
posed upon  the  attesting  witnesses  is  that  each  must  sign  his  name  as 
a  witness.  The  difference  is  neither  immaterial  nor  accidental.  A 
testator  may  be  illiterate,  or  he  may,  by  reason  of  paralysis,  or  other 
disabling  cause,  be  incapacitated  from  signing  his  name,  and  the  law 
has  wisely  and  liberally  provided  for  the  due  execution  of  a  will  by  one 
so  situated.  It  has  required  of  him  that  he  shall  subscribe,  and.  while 
the  word  unquestionably  has  for  one  of  its  significations  the  signing 


176  LAST   WILLS   AND   TESTAMENTS.  (Part   1 

of  a  name,  it  is  a  verb  of  comprehensive  meaning.  Any  form  or  kind  of 
underwriting  is  a  subscription,  and  generally  it  has  been  held  that  any 
mark  or  writing  by  the  testator  meant  by  him  to  be  his  name,  or  to 
take  the  place  of  his  signature,  or  to  serve  for  his  identification,  will 
answer  the  requirements  of  a  statute  which  calls  merely  for  subscrip- 
tion or  signing. 

The  same  liberality  of  construction  and  interpretation  has  been  put 
by  the  courts  upon  statutes  which  require  the  witnesses  merely  to  sub- 
scribe or  to  sign. 

There  are  thus  numerous  cases  under  such  statutes  which  hold,  in 
effect,  that  any  signing  by  which  alone,  or  by  which  aided  by  parol 
evidence,  the  identity  of  the  Subscriber  may  be  ascertained,  substan- 
tially complies  with  the  statute. 

The  case  of  the  appellant  upon  this  proposition  cannot  be  more 
strongly  stated  than  in  the  following  extracts  from  the  learned  work 
of  Mr.  Jarman,  discussing  the  Victorian  Wills  Act: 

"Examining  the  requirements  common  to  the  statute  of  frauds  and 
the  wills  act  in  their  order,  the  next  condition  prescribed  for  the  va- 
lidity of  a  will  is  that  it  should  be  signed,  which  suggests  the  inquiry, 
what  amounts  to  a  'signing'  by  the  testator?  It  has  been  decided  that 
a  mark  is  sufficient,  and  that  notwithstanding  the  testator  is  able  to 
write,  and  though  his  name  does  not  appear  on  the  face  of  the  will. 
A  mark  being  sufificient,  of  course  the  initials  of  the  testator's  name 
would  also  sui^ce.  And  it  would  be  immaterial  that  he  signed  by  a 
wrong  or  assumed  name  (since  that  name  would  be  taken  as  a  mark), 
or  that  against  the  mark  was  written  a  wrong  name."  1  Jarm.  Wills 
(6th  Ed.)  *79. 

"The  next  statutory  requisition,  which  is  common  to  the  old  and  the 
present  law,  is  that  the  will  be  'attested  and  subscribed'  by  the  wit- 
nesses. A  mark  has  been  decided  to  be  a  sufificient  subscription.  *  *  * 
The  initials  of  the  witnesses  also  amount  to  a  sufificient  subscription, 
if  placed  for  their  signature  as  attesting  the  execution.  *  *  *  ^ 
witness  need  not  sign  his  own  name  if  the  name  actually  subscribed 
be  intended  to  represent  his  name;  or  a  description  (without  any 
name)  is  sufificient  if  intended  to  identify  him  as  a  witness.  *  *  * 
In  fact  there  seems  to  be  no  distinction  in  these  respects  between  the 
word  'sign'  and  'subscribe.'  Any  act,  therefore,  which,  as  before  no- 
ticed, would  be  a  good  signature  by  a  testator,  would  be  a  good  sig- 
nature by  a  witness."     Id.  *85,  *86. 

An  examination  of  the  cases  bearing  upon  the  interpretation  of  the 
English  statute  shows  that  the  text  of  the  learned  author  is  fully 
supported. 

The  reasoning  by  which  the  conclusions  are  reached  may  be  thus 
summarized : 

To  "subscribe"  is  to  attest  or  give  consent  or  evidence  knowledge 
by  underwriting,  usually   (but  not  necessarily)  the  name  of  the  sub- 


Ch,  6)  EXECUTION   OF   WRITTEN   WILLS   AND   TESTAMENTS.  177 

scriber.  But  the  place  of  the  writing  is  immaterial,  since  a  still  more 
general  meaning  of  the  word  "subscribe"  is  to  attest  by  writing,  in 
which  definition  the  locality  is  wholly  disregarded.  This  is  the  rea- 
soning of  the  leading  English  case  of  Roberts  v.  Phillips,  4  El.  &  Bl. 
450. 

To  "sign,"  in  the  primary  sense  of  the  word,  is  to  make  any  mark. 
To  sign  an  instrument  or  document  is  to  make  any  mark  upon  it  in 
token  of  knowledge,  approval,  acceptance,  or  obligation.  The  sig- 
nature is  the  sign  thus  made.  And  while,  by  long  usage  and  custom, 
"signature"  has  come  generally  to  mean  the  name  of  a  person  writ- 
ten by  himself,  and  thus  to  be  nearly  an  exact  synonym  of  "auto- 
graph," that  signification  is  derivative,  and  is  not  inherent  in  the  word 
itself,  any  more  than  it  is  in  "autograph,"  which  strictly  conveys  no 
more  than  the  idea  of  a  specimen  of  an  individual's  writing. 

Any  "mark"  may  be  a  signature,  and  that  species  of  mark  which 
we. call  a  "cross"  (independent  of  an  accompanying  name)  was  early 
used  as  a  signature  of  assent,  and  indeed  was  designated  "signum." 
While  marksmen  have  become  fewer  with  the  spread  of  education,  the 
mark  of  the  cross  is  still  recognized  by  statute  law  as  a  method  of 
signing. 

Therefore,  as  the  Wills  Act  required  only  a  signing  by  the  testator, 
and  as  this  requirement  of  signing  only  was  also  found  in  the  statute 
of  frauds,  the  courts  early  decided  not  to  be  bound  by  any  narrow 
definition  of  "signing"  or  "signature"  as  meaning  the  writing  of  one's 
name,  but  to  give  to  the  word  its  broadest  possible  scope  and  sig- 
nificance, and  thus  held  that  any  mark  .or  signature  made  with  the 
intent  to  bind  the  maker  (in  the  case  of  the  statute)  or  to  be  a  sign 
(in  the  case  of  wills)  should  be  deemed  sufficient.  As  the  English 
courts  had  still  further  obliterated  from  the  word  "subscription"  the 
idea  of  place  or  locality,  there  was  left  no  measurable  distinction  be- 
tween the  requirement  upon  the  testator  to  sign  and  that  upon  thf. 
witness  to  subscribe. 

In  the  decisions  this  broad  rule  is  repeatedly  asserted.  In  Goods 
of  Clarke,  27  Law  J.  Prob.  18,  the  will  of  an  illiterate  person  was 
executed  by  her  mark,  against  which  was  written  her  maiden  name 
instead  of  that  properly  borne  by  her  in  marriage.  Says  the  court: 
"There  is  enough  to  show  that  the  will  is  really  that  of  the  person 
whose  it  proposes  to  be.  Her  mark  at  the  foot  or  end  of  it  is  a  suf- 
ficient execution,  and  what  somebody  else  wrote  against  the  mark 
cannot  vitiate  it." 

In  Goods  of  Clark,  2  Curt,  Ecc.  329,  the  testator  had  made  his  mark, 
and  requested  the  vicar  to  sign  for  him,  which  he  did  with  his  own 
name,  and  not  that  of  the  deceased.  Says  the  court:  "The  statute 
allows  a  will  to  be  signed  for  the  testator  by  another  person,  and  does 
not  say  that  the  signature  must  be  in  the  testator's  name.  Here  this 
gentleman,  at  the  testator's  request,  signed  the  will  for  him;  not  in 
Cost.  Wills— 12 


178  LAST   WILLS  AND   TESTAMENTS.  (Part   1 

the  testator's  name,  but  using  his  own  name.     I  incline  to  think  this 
is  a  sufficient  compliance  with  the  act," 

In  Goods  of  Bryce,  Id.  325,  the  testatrix  signed  her  will  by  a  mark, 
her  name  nowhere  appearing.  Says  the  court:  "Although  the  name 
of  the  testatrix  does  not  appear  upon  the  face  of  the  instrument,  the 
affidavit  sufficiently  accounts  for  the  manner  in  which  the  will  was 
signed.  The  statute  does  not  say  that  the  name  of  the  testator  shall 
appear  at  the  foot  of  the  will.  The  paper  is  identified  as  being  the 
will  of  the  deceased.  *  *  *  I  am  of  opinion  that  the  statute  is  suf- 
ficiently complied  with." 

The  foregoing  cases  deal  with  the  "signing"  by  the  testator.  Com- 
ing to  the  subscribing  by  the  witness,  it  is  said  in  Goods  of  Eynon, 
L.  R.  3  Prob.  &  Div.  92:  "No  particular  form  of  attestation  is  nec- 
essary, but  the  act  done  by  the  witness  must  be  intended  by  him  to  evi- 
dence his  attestation  of  the  will.  I  must  find  that  I  can  draw  an  in- 
ference from  what  occurred  that  the  witness  made  a  mark  of  some 
kind,  with  the  intention  to  evidence  his  attestation." 

In  Goods  of  Christian,  2  Rob.  Ecc.  110,  it  is  said:  "The  attesting 
witnesses  to  the  so-called  'codicil'  have  affixed  their  initials  only.  How- 
ever, I  have  no  doubt  in  the  matter,  although  I  believe  this  is  the  first 
instance  under  the  act  of  the  witnesses  so  signing.  I  am  not  aware 
that  +he  witnesses  can  be  required  to  sign  their  names.  I  am  of  opin- 
ion that  there  is  a  sufficient  subscription  on  their  parts,  and  therefore 
I  decree  probate  as  prayed." 

In  Goods  of  Olliver,  3  Spinks,  57,  it  is  said:  "The  statute  says 
the  witnesses  'shall  attest  and  subscribe  the  will.'  It  does  not  say 
'shall  write  their  own  names,'  so  that  a  mark  is  held  to  be  a  good 
subscription." 

These  cases  are  quoted  that  there  may  be  no  room  for  misunder- 
standing of  the  English  decisions  or  of  the  text  of  the  book  writers. 
But,  as  the  matter  is  wholly  statutory,  they  have  no  value  as  authority 
dnless  there  be  an  identity  in  the  statutory  requirements  of  this  state 
and  England.  But  there  is  no  such  identity.  Indeed,  our  statute  seems 
to  have  been  drawn  with  the  express  intent  to  foreclose  and  shut  out 
the  interpretation  given  to  the  English  law.  Thus  the  English  stat- 
ute requires  subscription.  That  word  had  been  judicially  declared 
not  to  have  reference  to  the  place  of  writing.  Our  statute  says  that 
the  will  shall  be  subscribed  at  the  end  thereof,  thus  expressly  mak- 
ing locality  of  writing  an  element  of  the  subscription. 

The  English  statute  required  a  signing.  As  interpreted  by  the 
court,  this  did  not  necessitate  the  signing  of  the  name.  By  express 
language  our  statute  commands  that  a  witness  shall  sign  his  name. 
In  England,  therefore,  a  witness  may  sign  in  any  one  of  a  multitude 
of  ways;  by  our  law  his  signing  is  limited  to  the  expression  of  his 
name. 

The  case  of  Meehan  v.  Rourke,  2  Bradf.  Sur.  (N.  Y.)  385,  is  in 
no  way  opposed  to,  but  rather  is  in  full  accord  with,  this  view.     The 


Ch.  6)  EXECUTION   OF   WRITTEN   WILLS   AND   TESTAMENTS.  179 

statute  of  New  York,  from  which  ours  was  taken,  likewise  requires 
that  the  witnesses  should  sign  their  names.  Eliza  Green,  one  of  the 
witnesses  to  the  will  under  consideration,  was  unable  to  write.  Her 
name  was  correctly  written  by  the  doctor,  and  she  then  made  her  mark 
across  it,  and  acknowledged  it  to  be  her  mark  and  signature.  The 
court  said  that  before  the  Revised  Statutes  a  witness  might  attest 
a  will  by  a  mark;  as  in  this  state  it  may  be  done  under  section  14  of 
the  Civil  Code.  The  opinion  declares :  "Our  statute  requires  the  wit- 
ness to  'sign  his  name.'  *  *  *  Where  another  person  writes  the 
name  of  the  witness,  and  then  the  witness  acknowledges  the  signature, 
— puts  his  mark  to  it,  his  signum, — he  literally  signs;  and  what  he 
signs  is  his  name, — i.  e.  he  signs  his  name, — while  a  mark  alone  [the 
learned  judge  significantly  adds]  would  not  be  sufficient."  Yet  a  mark 
alone  is  held  sufficient  under  the  English  statute. 

I  conclude,  therefore,  that  as  our  law  has  seen  fit  to  prescribe  that 
the  testator  shall  subscribe  his  will  at  the  end  thereof,  so  it  has  seen 
fit  to  require  that  attesting  witnesses  shall  sign  and  shall  sign  only  in 
one  way — that  is  to  say,  by  affixing  their  names.  It  cannot  be  said 
that  some  other  mode  of  subscription  will  answer  the  purpose,  or  sub- 
serve the  statutory  requirement,  when  in  truth  it  does  not.  As  well 
could  it  be  said  that  the  requirement  of  two  attesting  witnesses  is 
not  mandatory,  and  that  this  will,  having  been  duly  attested  by  one 
witness,  should  be  admitted  to  probate. 

That  the  overthrowing  of  any  will  works  a  hardship  upon  the  dev- 
isees and  legatees  is  obvious ;  but  the  law  is  no  more  tender  of  their 
claims  than  it  is  of  the  rights  of  the  natural  heirs.  When  a  will  is 
proved,  every  exertion  of  the  court  is  directed  to  giving  effect  to  the 
wishes  of  the  testator  therein  expressed,  but  in  the  proving  of  the  in- 
strument the  sole  consideration  before  the  court  is  whether  or  not  the 
legislative  mandates  have  been  complied  with.  The  judgment  and 
order  appealed  from  are  affirmed. 

We  concur:  Beatty,  C.  J.;  Harrison,  J.;  Temple,  J. 

Garoutte,  J.*°  I  dissent.  I  do  not  think  a  man's  testamentary  dis- 
position of  his  property  should  be  defeated  for  the  reasons  here  given. 
The  argument  requires  a  too  technical  analysis  of  terms  and  statutes 
in  order  to  arrive  at  such  a  result.  While  the  right  to  dispose  of  prop- 
erty by  will  is  purely  statutory,  still  it  can  hardly  be  said  to  be  a  mere 
matter  of  legislative  grace,  for  it  has  become  almost  an  inalienable 
right,  made  so  by  reason  of  its  long  practice  and  approval  in  all  civ- 
ilized nations.  It  is  conceded  that,  if  the  testator,  Walker,  had  made 
a  like  mistake,  and  signed  his  name  "Warren,"  it  would  not  have  de- 
feated the  will ;  but  it  is  now  held  that,  the  witness  Warren  having 
made  the  mistake  in  signing  his  name  "Walker,"  the  will  is  avoided. 
I  have  no  idea  that  the  legislature,  in  formulating  the  statute  as  to 
the  character  of  the  signatures,  ever  intended  such  results  to  follow; 

*5  The  dissenting  opinions  of  McFarland  and  Van  Fleet,  J  J.,  are  omitted. 


180  LAST   WILLS  AND   TESTAMENTS.  (Part  1 

and  I  am  satisfied  it  never  intended  to  attach  any  different  meaning 
to  the  two  phrases,  namely,  "sign  his  name  as  a  witness,"  and  "sub- 
scribed by  the  testator,"  or  that  the  legislature  ever  intended  to  bar 
a  man  from  being  a  witness  to  a  will  who  was  unable  to  sign  his 
name,  any  more  than  it  intended  to  bar  a  man  from  making  his  will 
who  was  likewise  so  unfortunate. 

For  the  purposes  of  this  statute  the  person's  mark,  properly  wit- 
nessed, is  his  name;  and  any  name  that  the  party  should  attach  to 
the  will  as  a  witness  is  his  name.  It  is  not  for  a  contestant  of  the 
will  to  say  to  a  witness,  "That  is  not  your  name;"  and  neither  is  it 
for  the  witness  to  appear  upon  the  stand  and  say,  "That  is  not  my 
name."  If  we  are  to  be  so  technical  in  this  matter,  the  statute  should 
have  said  "true  name."  The  true  names  of  witnesses  are  often  un- 
known to  the  testator,  and  to  say  that  a  person  could  intentionally 
and  corruptly  sign  a  false  name  to  a  will  as  a  witness,  and  thereby 
defeat  it,  is  to  go  to  great  lengths.  No  case  in  the  books  has  ever 
gone  that  far,  to  my  knowledge.  Still  that  doctrine  would  seem  to 
be  declared  by  the  main  opinion  of  the  court  in  the  present  case.  A 
name  signed  by  mistake  of  the  witness  is  no  different  from  one  signed 
in  fraud.  The  knave  wrote  the  name  as  his  name,  amd  for  the  pur- 
poses intended  by  the  testator  it  was  his  name.  In  the  present  case 
the  attorney,  as  a  witness,  unintentionally  wrote  a  name  which  was 
not  his  true  name,  but  he  intended  the  writing  to  be  his  name,  and  he 
made  the  writing  for  his  name,  and  for  the  purposes  intended  by  the 
testator;  and  as  to  those  purposes  it  should  be  held  to  be  his  name. 
If,  one  hour  previous  to  the  signing  of  the  will,  he  had  concluded 
to  change  his  name  to  C.  G.  Walker,  and  had  so  signed  it,  or,  for  the 
very  purpose  of  concealing  his  true  name,  had  signed  the  will  "John 
Brown,"  to  my  mind  the  will  would  be  legally  witnessed;  and  in  the 
present  case  the  same  conclusion  should  be  declared.** 


K 


In  re  STRONG'S  WILL. 

(Surrogate's  Court,  Westchester  County,  1891.    16  N.  T.  Supp.  104.) 

Proceeding  by  Edward  Strong,  as  executor,  for  the  probate  of  a 
paper  purporting  to  be  the  last  will  of  Eliza  Strong,  deceased.  The 
alleged  will  was  duly  signed  and  acknowledged  by  testatrix  in  the 
presence  of  Darius  A.  Secor  and  Sarah  Secor,  his  wife,  both  of  whom 
testatrix  then  requested  to  sign  the  will  as  witnesses.  Mr.  Secor,  in 
the  presence  of  testatrix,  signed  his  own  name,  and,  at  the  request 
of  Mrs.  Secor,  who  was  incapacitated  from  writing  by  reason  of  a 
felon  on  her  right  hand,  signed  her  name  also.     After  the  death  of 

*6  On  signing  by  mark,  see  114  Am.  St.  Rep.  222,  note;  4  Am.  &  Eng,  Ann. 
Cas.  637,  note. 


Ch.  6)  EXECUTION   OF   WRITTEN   WILLS   AND   TESTAMENTS.  181 

testatrix  Mrs.  Secor  caused  her  name  as  written  by  her  husband  to 
be  erased,  and  she  then  signed  her  name  in  place  thereof. 

Coffin,  S.  The  question  as  to  whether  the  alleged  will  was  suffi- 
ciently executed  according  to  the  requirements  of  our  statutes  on  the 
subject,  inasmuch  as  the  names  of  both  witnesses  were  written  solely 
by  one  of  them,  is  alone  presented  for  adjudication.  In  this  respect 
it  will  be  seen  that,  while  the  statute  requires  that  the  will  shall  be 
"subscribed"  by  the  testator  at  the  end  of  the  will,  it  also  provides 
that  "there  shall  be  at  least  two  attesting  witnesses,  each  of  whom 
shall  sign  his  name  as  a  witness  at  the  end  of  the  will  at  the  request 
of -the  testator."  4  Rev.  St.  (8th  Ed.)  p.  2547,  §  40,  subd.  4.  Thus 
there  is  a  change  from  the  word  "subscribed,"  as  applied  to  the  act 
of  the  testator,  to  the  words  "sign  his  name,"  as  applied  to  the  act  re- 
quired of  the  witnesses.  Whether  it  was  intended  by  the  legislature 
to  treat  the  words  "subscribe"  and  "sign"  as  synonymous  is  fairly 
open  to  question.  If  it  did  not  so  intend,  why  did  it  not  use  the  same 
word  in  each  instance? 

The  word  "subscribe,"  according  to  the  best  lexicographers,  is  to 
write  underneath,  while  "sign"  is  defined  to  affix  a  signature  to.  And 
it  was  held  in  the  English  courts  that  the  word  "sign,"  as  used  in  the 
statute  of  frauds,  was  sufficiently  complied  with  if  the  party  wrote  his 
name  on  the  paper  in  any  place,  so  that  if  even  he  commenced  by 
writing,  "I,  John  Jones,"  and  wrote  his  name  in  no  other  place,  it 
was  held  a  sufficient  signing  within  the  statute;  but  the  word  "sub- 
scribe" clearly  means  a  writing  at  the  end  or  foot.  And,  while  they 
have  given  a  very  liberal,  if  not  loose,  construction  of  the  word  "sign,"- 
in  so  far  as  the  statute  of  frauds  affecting  contracts  was  concerned, 
yet  in  the  case  of  wills,  where  the  witnesses  are  required  to  subscribe 
as  such,  they  exacted  some  physical  act  to  be  done  by  the  witnesses, 
either  by  writing  their  own  names  or  making  their  marks.  Moore 
V.  King,  3  Curt.  Ecc.  243;  1  Jarm.  Wills  (Rand.  &  T.  Ed.)  215.  But 
that  statute  expressly  permitted  the  signature  of  the  testator  to  a  will 
to  be  made  by  some  other  person  in  his  presence  and  by  his  direction. 
1  Rev.  Laws,  p.  364,  allowed  the  same  thing.  Under  these  statutes 
it  was  held  that  the  signature  of  the  testator  or  of  the  witnesses  by 
making  a  mark  was  sufficient.  Baker  v.  Dening,  8  Adol.  &  E.  94; 
Jackson  v.  Van  Dusen,  5  Johns.  144,  4  Am.  Dec.  330.  Many  other 
and  more  recent  cases  establish  the  same  principle. 

But  the  question  still  remains,  is  the  name  of  one  or  each  of  the 
witnesses,  written  by  another,  a  sufficient  compliance  with  the  re- 
quirement of  the  statute?  In  Goods  of  John  White,  2  Notes  Cas. 
Adm.  &  Ecc.  461,  it  appeared  that  a  husband,  a  witness,  signed  not 
only  his  own  name,  but  also  that  of  his  wife,  the  other  witness.  There 
was  no  evidence  that  the  wife  had,  in  fact,  become  a  party  to  the  sub- 
scription, and  the  execution  was  held  to  be  insufficient.  Here,  how- 
ever, the  wife  was  present  as  a  witness,  and,  because  of  her  temporary 
disability  to  write  her  name,  requested  her  husband  to  write  it  for 


382  LAST  WILLS  AND  TESTAMENTS.  (Part   1 

her,  which  he  did.  All  this  occurred  at  the  time  of  the  execution  of 
the  will  by  the  testatrix  and  in  her  presence,  and  although  the  latter 
did  not  also  request  the  husband  to  write  the  wife's  name,  yet  by  her 
silence  she  sanctioned  the  act. 

Surrogate  Bradford,  eminent  for  learning  and  industry,  seems  to 
have  inclined  to  the  opinion  that  an  attesting  witness  must  take  some 
physical  part  in  the  act  of  signing,  in  order  to  a  compliance  with  the 
statutory  requirement  of  signing  his  name.  Campbell  v.  Logan,  2 
Bradf .  Sur.  90-97 ;  Meehan  v.  Rourke,  Id.  385-392.  This^  is  prob- 
ably in  accord  with  the  tenor  of  English  decisions  on  the  subject,  with 
some  few  exceptions.   • 

But  while  the  precise  question  has  not,  so  far  as  known,  been  de- 
termined by  the  courts  of  this  state,  yet  in  some  of  our  sister  states 
a  subscription  by  a  witness  in  the  manner  it  was  done  in  this  instance 
has  been  held  sufficient.  In  Massachusetts,  in  the  case  of  Chase  v. 
Kittredge,  11  Allen,  49-59,  87  Am.  Dec.  687,  Gray,  J.,  says :  "A  sub- 
scription of  the  name  or  mark  of  a  witness  by  another  person  in  the 
presence  of  himself  and  the  testator  might  possibly  be  a  literal  com- 
pliance with  the  statute,  but,  not  being  in  the  handwriting  of  the  wit- 
ness, would  create  no  presumption  of  a  lawful  execution  and  attesta- 
tion, without  affirmative  evidence  that  it  was  so  made."  Here  we 
have  such  affirmative  evidence.  See,  also,  Horton  v.  Johnson,  18  Ga. 
396. 

In  Upchurch  v.  Upchurch,  16  B.  Mon.  (Ky.)  102,  and  in  Jesse  v. 
Parker,  6  Grat.  (Va.)  57,  52  Am.  Dec.  102,  it  was  expressly  held  that 
such  a  signing  of  the  witness'  name  as  occurred  in  this  instance  was 
a  sufficient  execution  under  a  similar  statute.  In  the  latter  case  we 
have  presented  the  singular  fact  of  a  will  being  sustained  where  the 
body  of  the  will,  the  name  of  the  testator,  and  of  the  three  witnesses 
required  in  that  state,  were  all  in  the  handwriting  of  one  person.  As 
was  well  said  in  that  case:  "Where  the  attestation  is  by  mark,  the 
validity  of  such  an  attestation  does  not  depend  upon  the  fact  of  the 
witness  making  his  mark,  or  doing  some  manual  act  in  connection 
with  the  signature,  but  upon  the  signing  of  the  name  of  the  witness 
by  his  authority." 

The  maxim,  qui  facit  per  alium  facit  per  se,  has,  doubtless,  its  limi- 
tations; but  it  is  difficult  to  discover  why  it  is  not  applicable  here. 
The  frauds  in  the  execution  of  wills  which  the  statute  was  designed 
to  guard  against  will  in  no  way  be  facilitated  by  the  sanctioning  of 
this  mode  of  execution.  Still,  where  we  consider  that  the  art  of  writ- 
ing is  so  common  that  there  can  be  little  trouble  in  finding  witnesses 
who  can  write  their  names,  it  is  desirable  that  wills  should  be  wit- 
nessed by  such  persons,  especially  in  view  of  the  fact  that  should  they 
make  their  mark,  or  sign  by  the  hand  of  another,  and  they  should  pre- 
decease the  testator,  there  would  be  no  possibility  of  proving  their 
handwriting,  and  then  the  will  could  not  be  admitted  to  probate,  un- 
less other  persons  should  chance  to  be  present  who  could  testify  to 


Ch,  G)  EXECUTION  OF  WRITTEN   WILLS   AND  TESTAMENTS.  183. 

the  facts ;  for  the  statute  provides  that,  in  case  the  witnesses  be  dead, 
the  will  may  be  established  by  proof  of  the  handwriting  of  the  tes- 
tator and  of  the  subscribing  witnesses.     Code,  §  2620. 

At  first  my  impression  was  that  the  execution  of  this  will  was  in- 
sufficient, but  a  further  examination  of  authorities  and  subsequent  re- 
flection have  led  to  a  different  conclusion.  It  is  therefore  held  to  be 
a  valid  will,  in  so  far  as  its  execution  is  concerned.*'^ 


RILEY  V.  RILEY. 

(Supreme  Court  of  Alabama,  18G0.     3G  Ala.  496.) 

R.  W.  Walker,  J.*^  *  *  *  3.  The  statute  requires  the  will  to  be 
"attested  by  at  least  two  witnesses,  who  must  subscribe  their  names 
thereto  in  the  presence  of  the  testator."  Code,  §  1611.  The  ques- 
tions we  are  called  upon  to  decide  are  whether  the  signature  of  the 
witness  may  be  made  by  another  person  for  him,  and,  if  so,  whether 
one  witness  can  subscribe  for  another  witness,  who  is  himself  well 
able  to  write.  While  the  statute  provides  that  the  will  may  be  signed 
by  "the  testator,  or  some  person  in  his  presence,  and  by  his  direction," 
the  provision  in  respect  to  the  attesting  witnesses  is  that  they  "must 
subscribe  their  names  thereto  in  the  presence  of  the  testator."  There 
is  certainly  much  force  in  the  suggestion  that  the  express  allowance 
of  the  alternative  in  one  case,  with  the  absence  of  such  allowance  in 
the  other,  raises  a  strong  inference  that  the  legislature  meant  to  re- 
quire the  actual,  personal  signature  of  each  witness.     *     *     * 

Without  now  saying  whether  an  actual  physical  participation  of 
the  witness  in  the  act  of  signing  is,  in  all  cases,  essential  to  a  valid 
subscription  of  his  name,  we  are  not  willing  to  go  so  far  as  to  hold, 
that  one  subscribing  witness  may  sign  for  another,  who  is  himself 
well  able  to  write,  and  who  does  not  in  any  way  join  in  the  physical 

47  "The  trial  proceeded  very  largely  upon  the  assumption  that  it  was  neces- 
sary for  Goodman  personally  to  sign  his  name  as  a  subscribing  witness.  If 
the  signature  had.  in  fact,  been  made  by  Etz  (the  other  subscribing  wit- 
ness) at  the  direction  of  Goodman  and  in  his  presence,  with  the  usual  request 
and  declai-ation  of  the  testator,  that  would  be  a  sufficient  compliance  with  the 
statute.  A  subscribing  witness  may  sign  by  mark  or  by  another  person,  the 
same  as  the  testator  himself."  Spring,  J.,  in  Mock  v.  Garson,  84  App.  Div. 
65,  69,  82  N.  Y.  Supp.  310,  313  (1903).  See  Lord  v.  Lord,  58  N.  H.  7,  42  Am. 
Rep.  565  (1876) ;  Smythe  v.  Irick,  46  S.  C.  299,  24  S.  E.  69,  32  L.  R.  A.  77.  57 
Am.  St.  Rep.  684  (1895)  ;  Schnee  v.  Schnee,  61  Kan.  643,  60  Pac.  738  (1900). 
Compare  In  re  Will  of  Elijah  Pope,  139  N.  C.  484,  52  S.  E.  235,  7  L.  R.  A. 
(N.  S.)  1193,  111  Am.  St.  Rep.  813  (1905),  where  the  witness  held  the  end  of 
the  pen  while  her  name  was  being  written. 

But  see  Riley  v.  Riley,  next  post;  In  re  Losee's  Will,  13  Misc.  Rep.  298, 
34  N.  T.  Supp.  1120  (1895) ;  McFarland  v.  Bush,  94  Tenn.  538,  29  S.  W.  899, 
27  L.  R.  A.  662,  45  Am.  St.  Rep.  760  (1895)  contra.  For  other  cases,  see  4 
Am.  &  Eng.  Ann.  Cas.  637.  note. 

*8  Part  only  of  the  opinion  is  given.  For  the  statement  of  facts  and  the 
first  part  of  the  opinion,  see  report  of  the  case,  ante,  p.  119. 


184  LAST   WILLS   AND   TESTAMENTS.  (Part    1 

act  of  subscription.  Whatever  may  be  the  rule  in  reference  to  wit- 
nesses who  are  not  able  to  write,  we  think  that,  where  a  witness  is 
himself  well  able  to  write,  the  subscription  of  his  name  by  another 
subscribing  witness  ought  not  to  be  deemed  a  compliance  with  the 
statute. 

The  evidence  set  out  in  the  record  shows  that  the  will  was  written 
and  signed  for  the  testator  by  one  Robbins,  who  subscribed  his  own 
name  as  a  witness,  and  also  the  name  of  the  other  witness;  the  latter 
not  partaking,  otherwise  than  by  a  simple  assent,  in  the  act  of  signa- 
ture, although  she  "could  read  and  write  very  well;  perhaps,  better 
than  Robbins  himself."  To  hold  that  these  facts  amounted  to  a  valid 
execution  and  attestation  of  the  will  would  certainly  weaken  the  safe- 
guards against  frauds  and  forgeries,  which  it  was  the  purpose  of  the 
statute  to  provide.  It  is  manifest  that  the  signatures  of  the  wit- 
nesses, written  by  themselves,  furnish  a  reliable  foundation  for  those 
legal  presumptions  in  favor  of  the  due  execution  of  a  will,  which  arise 
upon  proof  of  the  handwriting  of  the  witnesses,  when  they  are  dead 
or  out  of  the  state.  We  think  we  consult  sound  public  policy  in  de- 
ciding that  one  of  the  subscribing  witnesses  to  a  will  cannot  sign  the 
name  of  another  who  is  himself  well  able  to  write,  and  who  does  not 
physically  participate  in  the  act  of  signing. 

Decree  reversed,  and  cause  remanded. 


BURTON  V.  BROWN. 
(Supreme  Court  of  Mississippi,  1898.    25  South.  61.) 

On  the  11th  day  of  September,  1896,  George  Washington  died, 
leaving  a  will,  by  which  he  attempted  to  convey  certain  property  to 
his  wife,  Lou.  This  will  was  signed  as  follows:  "George  Washing- 
ton, per  Rev.  H.  M.  Mingo,  Sr.  Witness:  Rev.  Thomas  Morgan." 
Lou,  the  widow  of  testator,  has  since  intermarried  with  one  Burton, 
and  in  April,  1898,  filed  her  petition  for  the  probate  of  said  will,  to- 
gether with  the  affidavits  of  H.  M.  Mingo,  Sr.,  and  Thomas  Morgan, 
to  prove  and  establish  the  same.  The  clerk  in  vacation  admitted  the 
will  to  probate  and  record.  In  May,  1898,  appellee,  Amanda  Brown, 
filed  her  petition  to  the  court,  alleging  that  she  was  the  daughter  of 
George  Washington,  deceased,  and  praying  that  the  probate  of  said 
will  be  set  aside,  on  the  ground,  among  others,  that  said  instrument 
was  not  witnessed  as  wills  are  required  to  be  by  law.  This  petition 
was  granted  by  the  court,  and  the  probate  of  said  will  was  set  aside, 
and  appellant's  petition  for  probate  dismissed.  From  this  decree  an 
appeal  was  prosecuted. 

Woods,  C.  J.  There  is  but  one  subscribing  witness  to  the  instru- 
ment propounded  as  the  will  of  George  Washington.  The  name  of 
the  Reverend  H.  M.  Mingo  appears  only  where  he  signed  the  name 


Ch.  6)  EXECUTION   OF   WRITTEN   WILLS   AND   TESTAMENTS.  185 

of  the  deceased,  viz.,  "George  Washington,  per  Rev.  H.  M.  Mingo." 
A  mere  inspection  of  the  paper  demonstrates  that  he  did  not  sign  as 
a  subscribing  witness,  but  only  as  the  amanuensis  of  Washington  in 
his  signing  his  (Washington's)  name  to  the  instrument.  As  our  stat- 
ute requires  the  attestation  of  two  subscribing  witnesses  to  every  will, 
the  learned  court  below  properly  disallowed  the  clerk's  action  in  vaca- 
tion in  admitting  to  probate  the  will  which  was  subscribed  by  only 
one  witness.    Affirmed.** 


In  re  ROBERTSON'S  ESTATE. 

HOLYOKE  V.  SIPP  et  al. 

(Supreme  Court  of  Nebraska,  1906.     77  Neb.  394,  109  N.  W.  506.) 

DuFFiE,  C."^"  E.  L.  Holyoke,  the  executor  named  in  a  paper  pur- 
porting to  be  the  last  will  and  testament  of  William  Robertson,  has 
appealed  from  an  order  of  the  district  court  of  Lancaster  county  re- 
fusing to  admit  the  will  to  probate.  John  Krumack  and  W.  J.  Adam- 
son  were  the  subscribing  witnesses.  The  testator  and  subscribing 
witnesses  were  employed  in  the  freighthouse  of  the  B.  &  M.  R.  R. 
Co.  at  Lincoln.  The  witnesses  testified  that  Robertson  brought  the 
paper  to  them  there,  and  requested  their  signatures.  It  does  not  ap- 
pear that  the  witnesses  were  employed  in  the  same  room,  and  neither 
can  testify  that  they  subscribed  their  names  in  each  other's  presence. 

This,  under  our  statute,  is  immaterial.  Dewey  v.  Dewey,  1  Mete. 
349,  35  Am.  Dec.  367;  Jarman  on  Wills,  vol.  1,  p.  209.  Their  testi- 
mony is  also  lacking  in  certainty  as  to  whether  the  testator  declared 
that  the  paper  on  which  he  desired  their  signatures  was  his  last  will 
and  testament,  but  we  are  satisfied  that  from  previous  conversations 
with  him  both  the  witnesses  understood  that  it  was  his  last  will  and 
testament,  and  that  they  were  requested  to  attest  it  as  such.  This  we 
think  not  fatal  in  view  of  the  attestation  clause  attached,  and  the  same 
may  be  said  of  the  failure  of  the  witnesses  to  remember  with  certainty 
whether  the  will  was  signed  by  the  testator  when  the  same  was  signed 
and  attested  by  them.  The  attestation  clause  attached  jto  the  will  is 
in  the  following  language:  "Signed  and  acknowledged  by  the  above 
testator  in  the  presence  of  us  present  and  in  the  presence  of  each 
other  subscribe  our  names  this  21st  day  of  April,  1900,  A.  D.  at  Lin- 
coln, Neb.,  U.  S.  A.    John  Krumack,  Jr.    William  J.  Adamson." 

It  clearly  appears  from  the  evidence  that  the  testator  wrote  his  own 
will,  and  this  probably  accounts  for  the  fact  that  the  attestation  clause 

*9  See  Peake  v.  Jenkins,  80  Va.  293  (1885).  But  an  official  certificate  may 
also  be  an  attestation.  Murray  v.  Murphy,  39  Miss.  214  (1860);  Payne  v. 
Payne,  54  Ark.  415,  16  S.  W.  1  (1891).    See,  also,  Gump  v.  Go  wans,  post,  p.  196. 

BO  Part  of  the  opinion  is  omitted. 


186  LAST   WILLS  AND  TESTAMENTS.  (Part  1 

is  not  as  full  and  formal  as  in  general  use ;  but  it  states  with  certainty 
that  the  will  was  signed  by  the  testator  in  the  presence  of  the  wit- 
nesses, and  acknowledged  by  him,  and  that  their  names  were  subscrib- 
ed in  his  presence.  These  are  the  essential  requirements  under  our 
statute  to  the  making  of  a  valid  will.  See  section  4992,  Cobbey's 
Ann.  St.  1903.     *     *     * 

Per  Curiam.  For  the  reasons  stated  in  the  foregoing  opinion,  the 
judgment  of  the  district  court  is  reversed,  and  the  case  remanded  for 
further  proceedings."^ 


SECTION  8.— COMPETENCY  OF  WITNESSES 


STATUTORY  PROVISIONS. 

And,  in  one  case  determined  by  the  court  of  King's  Bench  (Holdfast 
d.  Anstey  v.  Dowsing,  2  Str.  1253  [1746])  the  judges  were  extremely 
strict  in  regard  to  the  credibility,  or  rather  the  competency,  of  the  wit- 
nesses; for  they  would  not  allow  any  legatee,  nor  by  consequence  a 
creditor,  where  the  legacies  and  debts  were  charged  on  the  real  estate, 
to  be  a  competent  witness  to  the  devise,  as  being  too  deeply  concerned 
in  interest  not  to  wish  the  establishment  of  the  will ;  for,  if  it  were 
established,  he  gained  a  security  for  his  legacy  or  debt  from  the  real 
estate,  whereas  otherwise  he  had  no  claim  but  on  the  personal  assets. 
This  determination,  however,  alarmed  many  purchasers  and  creditors, 
and  threatened  to  shake  most  of  the  titles  in  the  kingdom,  that  de- 
pended on  devises  by  will.  For,  if  the  will  was  attested  by  a  servant 
to  whom  wages  were  due,  by  the  apothecary  or  attorney,  whose  very 
attendance  made  them  creditors,  or  by  the  minister  of  the  parish  who 
had  any  demand  for  tithes  or  ecclesiastical  dues  (and  these  are  the 

81  See  Manners  v.  Manners,  ante,  p.  145;  In  re  Beggans'  Will,  ante,  p.  148; 
In  re  Sezer's  Will,  129  App.  Dlv.  7,  113  N.  Y.  Supp.  210  (1908).  On  the  ne- 
cessity of  an  attestation  clause,  see  14  L.  R.  A.  (N.  S.)  255,  note;  11  Am.  & 
Eng.  Ann.  Cas.  428,  note;  114  Am.  St.  Rep.  238,  note.  On  the  effect  of  an  un- 
signed attestation  clause  to  a  holographic  Avill,  see  104  Am.  St.  Rep.  32,  note. 

"It  is  not  indispensable  that  the  witness  shall  sign  a  formal  clause  of 
attestation.  The  attestation  clause  may  consist  of  a  simple  word,  such  as 
•witness,'  'attest,'  or  'test,'  or  there  may  be  no  words  of  attestation  at  all, 
and  yet  the  signature  of  the  witness  alone  constitutes  an  attestation  of 
every  fact  necessary  to  make  the  will  valid."  Cartwright,  C.  J.,  in  Calkins 
V.  Calkins,  216  111.  458.  403,  75  N.  E.  182,  183,  1  L.  R.  A.  (N.  S.)  393,  108  Am. 
St.  Rep.  233  (190.5).  That  the  attesting  clause  Is  defective  in  form  is  unim- 
portant.    Barricklow  v.  Stewart,  1G3  Ind.  438,  72  N.  E.  128  (1904). 

"The  authorities  all  hold  that  the  attestation  or  subscription  by  witnesses 
must  be  on  the  same  sheet  of  paper  as  that  which  contains  the  testator's 
signature,  or  else  upon  some  pai)er  physically  connected  with  that  sheet." 
Brown,  J.,  in  In  re  Baldwin's  Will,  146  N.  C.  25,  30,  59  S.  E.  163,  165,  125 
Am.  St.  Rpp.  4()(;  (1907).  That  the  sulrscription  may  be  in  the  space  left  foi 
the  names  of  the  executors,  no  executors  being  named.  Is  held  in  Goods  of  El- 
lison, [1907]  2  Ir.  R.  315. 


Ch.  6)  EXECUTION   OP  WRITTEN   WILLS   AND  TESTAMENTS.  187 

persons  most  likely  to  be  present  in  the  testator's  last  illness),  and  if 
in  such  case  the  testator  had  charged  his  real  estate  with  the  payment 
of  his  debts,  the  whole  will,  and  every  disposition  therein,  so  far  as 
related  to  real  property,  were  held  to  be  utterly  void.  This  occasioned 
the  statute  25  Geo.  II,  c.  6  [1752],  which  restored  both  the  compet- 
ency, and  the  credit  of  such  legatees,  by  declaring  void  all  legacies 
given  to  witnesses,  and  thereby  removing  all  possibility  of  their  in- 
terest affecting  their  testimony.  The  same  statute  likewise  established 
the  competency  of  creditors,  by  directing  the  testimony  of  all  such 
creditors  to  be  admitted,  but  leaving  their  credit  (like  that  of  all  other 
witnesses)  to  be  considered,  on  a  view  of  all  the  circumstances,  by 
the  court  and  jury  before  whom  such  will  shall  be  contested.  And 
in  a  much  later  case  (Windham  v.  Chetwynd,  1  Burr.  414  [1757]) 
the  testimony  of  three  witnesses  who  were  creditors  was  held  to  be 
sufficiently  credible,  though  the  land  was  charged  with  the  payment 
of  debts;  and  the  reasons  given  on  the  former  determination  were 
said  to  be  insufficient. 
2  Bl.  Com.  *377. 


WILLS  ACT. 

XIV.  And  be  it  further  enacted,  that  if  any  person  who  ^hall  at- 
test the  execution  of  a  will  shall  at  the  time  of  the  execution  thereof, 
or  at  any  time  afterwards,  be  incompetent  to  be  admitted  a  witness 
to  prove  the  execution  thereof,  such  will  shall  not  on  that  account 
be  invalid, 

XV.  And  be  it  further  enacted,  that  if  any  person  shall  attest  the 
execution  of  any  will  to  whom  or  to  whose  wife  or  husband  any  bene- 
ficial devise,  legacy,  estate,  interest,  gift,  or  appointment,  of  or  affect- 
ing any  real  or  personal  estate  (other  than  and  except  charges  and 
directions  for  the  payment  of  any  debt  or  debts),  shall  be  thereby 
given  or  made,  such  devise,  legacy,  estate,  interest,  gift,  or  appoint- 
ment shall,  so  far  only  as  concerns  such  person  attesting  the  execution 
of  such  will,  or  the  wife  or  husband  of  such  person,  or  any  person 
claiming  under  such  person  or  wife  or  husband,  be  utterly  null  and 
void,  and  such  person  so  attesting  shall  be  admitted  as  a  witness  to 
prove  the  execution  of  such  will,  or  to  prove  the  validity  or  invalidity 
thereof,  notwithstanding  such  devise,  legacy,  estate,  interest,  gift,  or 
appointment  mentioned  in  such  will. 

XVI.  And  be  it  further  enacted,  that  in  case  by  any  will  any  real  or 
personal  estate  shall  be  charged  with  any  debt  or  debts,  and  any  cred- 
itor, or  the  wife  or  husband  of  any  creditor,  whose  debt  is  so  charged, 
shall  attest  the  execution  of  such  will,  such  creditor  notwithstanding 
such  charge  shall  be  admitted  a  witness  to  prove  the  execution  of  such 
will,  or  to  prove  the  validity  or  invalidity  thereof. 

XVII.  And  be  it  further  enacted,  that  no  person  shall,  on  account 


188  LAST   WILLS   AND   TESTAMENTS.  (Part   1 

of  his  being  an  executor  of  a  will,  be  incompetent  to  be  admitted  a 
witness  to  prove  the  execution  of  such  will,  or  a  witness  to  prove  the 
validity  or  invalidity  thereof. 
'  7  Wm.  IV  &  1  Vict.  c.  26,  §§  XIV-XVII  (1837). 


SPARHAWK  V.  SPARHAWK. 
(Supreme  Judicial  Court  of  Massachusetts,   1865.     10  Allen,   155.) 

Appeal  from  a  decree  of  the  judge  of  probate,  disallowing  an  in- 
strument offered  for  probate  as  the  will  of  Catherine  S.  Cole. 

It  was  agreed  that  Mrs.  Cole,  at  the  times  of  the  execution  of  this 
instrument  and  of  her  death,  had  no  father,  mother,  husband  or  chil- 
dren living;  that  she  died  possessed  of  considerable  property;  that 
Edward  Sparhawk,  one  of  the  three  attesting  witnesses,  was  her 
brother  and  an  heir  at  law,  and  that  the  instrument  contained  no  de- 
vise or  bequest  to  him,  but  gave  nearly  all  the  property  to  his  son. 
The  question  whether  he  was  a  competent  attesting  witness  was  re- 
served by  Gray,  J.,  for  the  determination  of  the  whole  court. 

BiGELOW,  C.  J.  The  provisions  of  Gen.  St.  c.  131,  §§  13,  14,  abol- 
ishing the  disqualification  of  witnesses  on  the  ground  of  infamy  and 
interest,  and  permitting  parties  to  the  record  in  all  civil  actions  and 
proceedings  to  testify,  do  not  apply  to  attesting  witnesses  to  wills  or 
codicils.  By  section  15  these  are  specially  excepted  from  the  opera- 
tion of  the  two  preceding  sections.  We  must  therefore  have  recourse 
to  the  well-settled  rules  of  the  common  law,  as  they  existed  prior  to 
the  enactment  of  the  above-cited  provisions,  in  order  to  determine 
whether  a  witness  to  a  will  is  competent  as  a  subscribing  witness  at 
the  time  of  the  attestation  of  the  instrument  and  its  execution  by  the 
testator.  It  is  to  be  borne  in  mind  that  the  question  to  be  determined 
in  this  case  is  not  whether  the  witness  objected  to  at  the  trial  was  com- 
petent to  give  evidence  in  the  case,  but  whether  he  was  competent 
according  to  the  rules  of  the  common  law  to  act  as  a  subscribing  wit- 
ness. If  he  was,  then  the  will  was  duly  attested;  but  if  he  was  not, 
then  the  will  cannot  be  admitted  to  probate,  because  it  was  not  sub- 
scribed in  the  presence  of  the  testator  by  three  competent  witnesses. 

The  much-vexed  question  as  to  the  true  construction  of  the  words 
"credible  witnesses"  in  the  English  statute  of  wills  was  early  settled 
by  this  court,  in  Amory  v.  Fellowes,  5  Mass.  219,  229,  in  which  it  was 
held  that  the  word  "credible"  was  used  as  equivalent  to  "competent," 
and  that  a  witness  was  admissible  to  prove  the  execution  of  a  will 
"whom  the  law  will  trust  to  testify  to  a  jury."  This  construction  was 
confirmed  by  several  subsequent  decisions  (Sears  v.  Dillingham,  12 
Mass.  358,  361 ;  Hawes  v.  Humphrey,  9  Pick.  350,  356,  20  Am.  Dec. 
481 ;  Haven  v.  Hilliard,  23  Pick.  10,  17),  and  was  incorporated  into 
Rev.  St.  c.  62,  §  6,  by  changing  the  phrase  "credible  witnesses"  into 


Ch.  6)  EXECUTION   OF   WRITTEN   WILLS   AND   TESTAMENTS.  189 

"competert  witnesses"  (Rep.  of  Com.  on  Rev.  St.  c.  62,  §  4).  The 
same  phraseology  is  contained  in  Gen.  St.  c.  92,  §  6. 

There  can  be  no  doubt  that  these  words  have  a  "pecuHar  and  ap- 
propriate meaning  in  the  law,"  and  that  in  interpreting  them  it  is 
our  duty  to  give  them  that  meaning.  This  is  the  rule  of  exposition 
prescribed  in  Rev.  St.  c,  2,  §  6,  and  Gen.  St.  c.  3,  §  7.  A  competent 
witness,  according  to  legal  intendment,  is  one  who  is  entitled  to  be 
examined  in  a  court  of  justice,  and  of  whose  credibility  the  court  and 
jury  are  by  the  well-settled  rules  of  law  permitted  to  judge.  He  must 
be  so  situated,  in  respect  to  the  issue  depending  between  the  parties 
to  a  cause  or  proceeding,  or  to  the  particular  fact  concerning  which  he 
is  called  to  testify,  and  must  have  such  sense  of  the  obligation  of  an 
oath,  as  to  come  within  the  class  of  persons  whom  the  common  law 
deems  it  safe  and  wise  to  admit  to  give  testimony  in  judicial  investi- 
gations. In  general,  if  a  witness  is  not  wanting  in  religious  belief, 
if  he  has  not  been  rendered  infamous  by  conviction  of  crime,  and  has 
no  pecuniary  interest  in  the  event  of  the  suit  in  which  he  is  called  to 
testify,  he  is  admissible  and  competent  as  a  witness. 

There  are  no  other  tests  by  which,  under  the  rules  of  the  common 
law,  a  court  can  determine  whether  a  witness  is  to  be  excluded  or  ad- 
mitted, and,  so  far  as  we  know,  no  other  have  ever  been  applied  in 
any  of  the  cases  which  have  arisen  under  the  statute  regulating  the 
attestation  of  wills.  Certainly,  in  all  of  those  which  have  heretofore 
been  decided  by  this  court,  the  struggle  has  been  whether  the  witness 
had  at  the  time  of  attestation  such  pecuniary  interest  in  the  event  of 
the  suit  as  to  be  then  disqualified  as  a  witness  to  testify  concerning 
the  signing  of  the  will  by  the  testator,  according  to  the  established  rule 
of  evidence  at  common  law,  as  recognized  and  acted  on  in  courts  of 
justice. 

Applying  this  rule  to  the  facts  agreed  in  the  present  case  concern- 
ing the  situation  and  relation  of  the  attesting  witness,  we  are  unable 
to  see  any  valid  ground  of  objection  to  his  competency.  It  is  conceded 
that  he  was  one  of  the  heirs  at  law  of  the  testatrix,  and,  if  she  had 
died  intestate,  he  would  have  been  entitled  to  one  fourth  part  of  her 
estate.  It  is  also  agreed  that  by  her  last  will  the  testatrix  devised  and 
bequeathed  the  larger  part  of  her  estate  to  the  son  of  the  attesting 
witness,  and  made  no  devise  or  bequest  whatever  to  the  latter.  It  is 
very  clear,  therefore,  that  the  pecuniary  interest  of  the  witness  would 
be  promoted  by  a  failure  to  prove  the  due  attestation  of  the  will,  and 
that  his  testimony  in  support  of  it  would  operate  directly  against  this 
interest. 

It  is  contended,  however,  that  the  fact  that  he  was  the  heir  at  law 
of  the  testatrix,  and  in  the  event  of  intestacy  that  he  would  be  enti- 
tled to  a  distributive  share  of  the  estate  of  his  sister,  gave  him  an 
interest  in  the  subject-matter.  In  a  certain  sense  this  is  true.  He 
had  an  interest  in  the  question  whether  his  sister  should  die  testate 
or  intestate,  because  on  this  contingency  depended  his  own  claim  to 


190  LAST   WILLS   AND   TESTAMENTS.  (Part   1 

share  in  her  estate.  But  the  insuperable  difficulty  in  the  way  of  hold- 
ing this  fact  to  be  a  disqualification  of  him  as  a  witness  is  that  by  the 
rule  of  law  interest  of  itself,  without  regard  to  its  nature  or  bearing 
on  the  issue,  never  operated  to  exclude  a  witness  from  giving  evi- 
dence. It  is  only  when  the  pecuniary  interest  of  a  person  will  in  some 
way  and  to  some  appreciable  extent  be  aided  or  promoted  by  a  judg- 
ment or  decree  in  favor  of  the  party  calling  him,  that  he  is  excluded 
from  testifying,  according  to  the  rule  of  the  common  law.  So  plain 
is  this,  that  it  is  said  by  Professor  Greenleaf  in  1  Greenl.  Ev.  §  410, 
that  "it  is  hardly  necessary  to  observe,  that  when  a  witness  is  pro- 
duced to  testify  against  his  interest,  the  rule  that  'interest  disqualifies 
does  not  apply,  and  the  witness  is  competent."  Nor  is  this  all.  Not 
only  does  such  an  interest  not  disqualify  a  witness,  but  it  is  always 
deemed  to  be  a  circumstance  legitimately  entitled  to  great  weight  in 
judging  of  the  credibility  of  a  witness,  that  he  is  called  to  testify  ad- 
versely to  his  own  interest. 

This  rule  of  the  common  law  which  excludes  a  witness  from  giving 
evidence  in  favor  of  his  own  interest  is  said  to  be  founded  on  the 
close  and  intimate  connection  which  experience  has  shown  to  exist 
between  the  situation  of  a  witness  and  the  truth  or  falsity  of  his  tes- 
timony. The  common  law  rejected  the  evidence  of  persons  called  to 
testify  in  support  of  their  interest,  not  because  persons  so  situated 
might  not  sometimes  state  the  truth,  but  because  a  long  acquaintance 
with  and  familiar  knowledge  of  proceedings  in  courts  had  shown  that 
men  were  subject  to  be  greatly  swayed  and  influenced  in  their  tes- 
timony by  having  a  private  pecuniary  interest  in  the  favorable  result 
of  a  cause  which  they  were  called  to  support  by  their  evidence;  and 
that,  if  allowed. to  give  testimony  in  such  cases,  it  would  tend  to  the 
commission  of  perjury,  and  to  mislead  rather  than  to  guide  juries  in 
the  investigation  of  truth.  It  is  obvious  that  the  reason  on  which  the 
rule  is  founded  has  no  application  where  the  testimony  which  a  wit- 
ness is  called  to  give  will  operate  to  the  prejudice  of  his  rights  or 
interest,  or  in  no  way  tend  to  promote  them. 

Nor  can  we  see  any  greater  difficulty  in  applying  the  ordinary  rule 
of  exclusion  on  the  ground  of  interest  to  an  attesting  witness  to  a 
will  than  to  one  who  is  called  to  testify  in  the  trial  of  an  action  at  law. 
In  the  latter  case  the  test  of  competency  is  whether  the  witness  will 
gain  by  a  decision  of  the  case  in  favor  of  the  party  who  offers  him  as 
a  witness.  It  does  not  depend  on  the  nature  of  his  evidence  or  the 
facts  to  which  he  is  expected  to  be  a  witness.  The  question  is  not 
whether  he  shall  be  permitted  to  give  a  certain  kind  of  evidence,  or 
to  testify  to  particular  facts  and  not  to  others,  but  whether  he  can  be 
admitted  to  testify  at  all.  So  in  case  of  the  attestation  of  a  will.  The 
competency  of  the  witness  is  to  be  settled  by  his  situation  at  the  time 
of  attestation,  with  respect  to  the  subject  matter  and  the  contents  of 
the.  will. 


Ch.  6)  EXECUTION  OF   WRITTEN   WILLS  AND  TESTAMENTS.  191 

The  question  is  not  whether  he  will  testify  in  support  of  or  ad- 
versely to  the  establishment  of  the  will,  but  whether  his  situation  and 
relation  to  the  testator  or  testatrix,  and  the  disposition  of  the  property 
by  the  will,  were  such,  when  the  will  was  made,  that  he  can  be  ad- 
mitted to  testify  at  all.  Nor  is  it  at  all  material  to  the  question  of  com- 
petency that  the  contents  of  the  will  were  unknown  to  the  witness 
at  the  time  of  attestation.  The  law  does  not  look  to  the  conscious- 
ness or  knowledge  of  a  party  to  ascertain  whether  he  is  competent  to 
testify.  It  is  the  fact  of  a  present  existing  interest  which  disqualifies. 
If  this  exists,  the  witness  is  incompetent ;  if  no  interest  is  shown,  then 
he  is  competent,  irrespective  of  his  knowledge  of  an  absence  of  inter- 
est in  the  subject  matter  in  controversy.  If,  by  the  terms  of  the  will, 
its  admission  to  probate  would  operate  favorably  to  his  interests,  he 
is  incompetent  to  attest  the  execution  of  the  instrument.  He  then  has 
a  direct  pecuniary  interest  in  the  proof  of  the  fact  to  which  he  is 
called  to  bear  witness. 

The  principles  of  law  regulating  the  competency  of  attesting  wit- 
nesses to  wills  are  correctly  stated  in  Haven  v.  Hilliard,  ubi  supra. 
It  is  true  that  in  giving  an  exposition  of  the  provisions  of  a  statute 
affecting  the  validity  of  the  attestation  in  that  case,  certain  illustrations 
were  used  by  the  court  which  seem  to  give  countenance  to  the  doctrine 
that  a  witness  to  the  execution  of  a  will  may  be  incompetent  even 
where  his  interest  was  adverse  to  its  establishment  and  validity.  But 
the  case  itself  shows  that  no  point  concerning  the  competency  of  wit- 
nesses so  situated  was  there  raised,  and  that  the  language  of  the  court, 
though  liable  to  misapprehension,  was  not  intended  as  a  decision  of 
that  question.  Certainly  so  far  as  it  seems  to  support  the  proposition 
that  an  heir  at  law,  who  is  disinherited  in  whole  or  in  part  by  a  will, 
is  incompetent  as  an  attesting  witness,  the  case  is  contrary  to  well 
settled  principles,  and  must  be  overruled. 

Case  to  stand  for  trial.°* 

62  "The  statute  of  wills  requires  'three  or  more  credible  witnesses,'  and 
the  well-settled  construction  of  this  and  other  similar  statutes  is  that 
the  witnesses  should  be  competent,  or  not  disqualified,  at  the  time  of  the 
attestation  of  the  will,  to  be  sworn  and  to  testify  in  a  court  of  justice." 
Doe,  J.,  in  Carlton  v.  Carlton,  40  N.  H.  14,  17  (1859).  In  that  case  it  was 
held  that  an  infant  under  fourteen  years  of  age  was  presumptively  incom- 
petent, but  that  the  presumption  might  be  rebutted.  A  witness'  subsequent 
Incompetency  will  not  affect  the  validity  of  the  will.  Wisehart  v.  Apple- 
gate.  172  Ind.  313,  88  N.  E.  501  (1909). 

"If  the  will  provides  a  pecuniary  benefit  to  the  attesting  witness,  though 
dependent  upon  the  happening  of  an  event  which  may  happen,  he  has  a 
beneficial  interest  under  it,  in  contemplation  of  law ;  and  if  the  subsequent 
event  upon  which  the  interest  depends  does  not  happen,  that  fact  does  not 
relate  back  and  restore  competency."  Strout,  J.,  in  In  re  Trinitarian  Con- 
gregational Church  and  Society  of  Castine,  91  Me.  416,  423,  40  Atl.  325,  327 
(1898). 

On  the  competency  of  witnesses  to  wills,  see  77  Am.  St.  Rep.  459,  note ;  15 
Am.  &  Eng.  Ann.  Cas.  889,  note. 


192  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

WINSLOW  V.  KIMBALL. 
(Supreme  Judicial  Court  of  Maine,  1846.     25  Me.  493.) 

Whitman,  C.  J."  This  is  an  appeal  from  the  decree  of  the  judge 
of  probate,  for  this  county,  approving  the  will  of  A.  G.  Winslow,  de- 
ceased. The  instrument  was  subscribed  as  usual  by  three  attesting  wit- 
nesses. But  one  of  them  was  the  wife  of  a  legatee  in  the  will.  And  it 
is  insisted  that  this  is  not  a  case  within  Rev.  St.  c.  92,  §  5,  rendering 
bequests  to  subscribing  witnesses  void,  as  the  wife  was  not  a  legatee; 
and  it  must  be  admitted  that,  nominally,  she  was  not;  and,  upon  a 
construction  strictly  literal,  the  ground  relied  upon  might  be  tenable. 
But  statutes  are  to  receive  such  a  construction  as  must  evidently  have 
been  intended  by  the  Legislature.  To  ascertain  this  we  may  look  to 
the  object  in  view;  to  the  remedy  intended  to  be  afforded;  and  to  the 
mischief  intended  to  be  remedied.  The  object  in  view  in  the  provision 
in  question  clearly  was  to  prevent  wills  from  becoming  nullities,  by 
reason  of  any  interest  in  witnesses  to  them,  created  entirely  by  the 
wills  themselves.  No  one  can  doubt,  if  it  had  occurred  to  the  Legis- 
lature that  the  case  before  us  was  not  embraced  in  the  enactment,  that 
it  would  have  been  expressly  included.  It  was  a  mischief  of  the  pre- 
cise kind  of  that  which  was  provided  against;  and  we  think  may  be 
regarded  as  virtually  within  its  category. 

Accordingly,  in  New  York,  where  the  statutory  provision,  in  this 
particular,  is  the  same  as  in  this  state,  a  devise  or  legacy  to  the  hus- 
band or  wife,  the  other  being  a  witness  to  the  will  bequeathing  it, 
is  held  to  be  void,  upon  the  ground,  as  expressed  by  one  of  the  judges 
of  the  court  there,  "that  the  unity  of  husband  and  wife,  in  legal  con- 
templation, is  such  that,  if  either  be  a  witness  to  a  will  containing  a 
devise  or  legacy  to  the  other,  such  devise  or  legacy  is  void,  within  the 
intent  of  the  statute,"  and  upon  the  ground,  that  the  statute  concern- 
ing wills  should  receive  a  liberal  construction,  and  one  consistent  with 
common  sense.  Jackson  v.  Woods,  1  Johns.  Cas.  163;  Jackson  v. 
Durland,  2  Johns.  Cas.  314. 

The  decree  of  the  judge  of  probate  is  affirmed." 

Bs  The  statement  of  facts  is  omitted. 

54  Tlie  Massachusetts  court  refused  to  follow  the  Maine  and  New  York 
cases,  because  it  thought  their  coustruction  of  the  statute  "founded  rather 
upon  a  conjecture  of  the  unexpressed  intent  of  the  Legislature,  or  a  con- 
sideration of  what  they  might  wisely  have  enacted,  than  upon  a  sound 
judicial  exposition  of  the  statute  by  which  their  intent  has  been  manifest- 
ed," and  accordingly,  in  order  not  to  have  to  declare  void,  "not  merely  the 
interest  which  the  wife,  who  was  a  subscribing  witness,  would  take,  by  way 
of  dower  or  otherwise,  in  the  property  devised  to  her  husband,  but  also  the 
whole  devise  to  and  for  the  benefit  of  the  husband,  who  was  not  a  sub- 
scribing witness  and  whose  estate  the  statute  does  not  assume  to  reach," 
declared  the  whole  will  void.  Sullivan  v.  SuUivan,  106  Mass.  474,  475,  476, 
8  -Vm.  Kep.  356  (1871).  See,  also,  Hodgman  v.  Kittredge,  67  N.  H.  254,  32 
Atl.  158,  68  Am.  St.  Rep.  661  (1S92) ;  Fisher  v.  Spence,  150  111.  2o3,  37  N. 
E.  314,  41  Am.  St.  Rep.  360  (1894),  and  77  Am.  St.  Rep.  468,  469,  note.  The 
Maine  rule  was  adopted  in  Massachusetts  by  St.  1878,  c.  122. 


Ch.  6)  EXECUTION   OF  WRITTEN   WILLS  AND   TESTAMENTS.  193 

In  re  HOLT'S  WILL. 
NEEDHAM  et  al.  v.  BORDEN  et  al. 

(Supreme  Court  of  Minnesota,  1893.    56  Minn.  33,  57  N.  W.  219,  22  L.  R.  A. 

481,  45  Am.  St.  Rep.  434.) 

Vanderburgh,  J.*  The  will  in  question  here  contains  a  legacy  to 
Georgiana  Needham,  estimated  by  the  testator  at  about  $100,  and  it 
was  attested  by  two  witnesses,  one  of  which  was  E.  Z.  Needham,  who 
is  and  was  at  the  time  of  such  attestation  the  husband  of  Georgiana. 
Mrs.  Needham  is  the  proponent  of  the  will,  and  in  the  probate  court 
objection  was  made  by  the  contestants,  appellants  here,  to  the  allow- 
ance and  probate  of  the  will  on  the  ground  that  the  husband  of  the 
proponent  E.  Z.  Needham  was  not  a  competent  witness  to  the  will. 

The  action  of  the  probate  court,  allowing  the  will,  having  been  af- 
firmed by  the  district  court,  the  case  is  brought  here  on  appeal  from 
the  judgment  of  the  last-named  court. 

1.  The  first  question  presented  involves  the  competency  of  the  at- 
testing witness  E.  Z.  Needham.  Undoubtedly  he  must  have  been  a 
competent  witness  at  the  time  of  the  execution  of  the  will.  This  is 
the  established  doctrine  of  the  common-law  authorities,  from  the  case 
of  Holdfast  V.  Dowsing,  2  Strange,  1253,  down  to  the  present  time 
(1  Redf.  Wills,  253;  2  Greenl.  Ev.  par.  691;  Morrill  v.  Morrill,  53 
Vt.  78,  38  Am.  Rep.  659) ;  and  it  is  clearly  recognized  in  our  statute. 
(Probate  Code,  c.  2,  §  19),  which  requires  that  a  will  shall  be  attested 
and  subscribed  in  the  testator's  presence  by  two  or  more  competent 
witnesses.  But,  if  competent  at  the  time  of  the  execution  of  the  will, 
their  subsequent  incompetency,  from  whatever  cause  it  arises,  shall 
not  prevent  the  probate  and  allowance  of  the  will,  if  it  is  otherwise 
satisfactorily  proven. 

The  appellants,  however,  contend  that  the  attesting  witnesses  must 
be  such  as  would  be  competent  under  the  common-law  rule,  and  that 
they  are  impliedly  not  included  in  the  definition  of  "witness"  (Gen. 
St.'c.  73,  §  6),  because  their  competency  is  to  be  determined  as  of  the 
time  of  the  attestation,  and  not  as  of  the  time  when  they  may  be  called 
to  testify  on  the  probate  of  the  will.  But  this  construction  cannot  be 
upheld.  The  cases  from  Massachusetts  are  not  in  point,  because  there 
the  statutes  removing  the  objection  to  the  competency  of  witnesses  on 
the  ground  of  interest  and  of  the  relation  of  husband  and  wife  are 
expressly  declared  not  to  apply  to  attesting  witnesses  to  a  will.  Sul- 
livan V.  Sullivan,  106  Mass.  478,  8  Am.  Rep.  356. 

The  question  of  the  competency  of  such  witnesses  in  this  state  is 
determined  by  the  statute.     Gen.  St.  c.  73,  §§  6,  7,  9,  10.     An  attest- 
ing witness  is  competent,  if  he  be  one  who  would  at  the  same  time  be 
*  The  statement  of  facts  Is  omitted. 
Cost.  Wills— 13 


194  LAST   WILLS   AND   TESTAMENTS.  (Part  1 

competent  to  testify  in  court  to  the  facts  which  he  attests;  and  so 
the  courts  hold.  Thus  in  Jenkins  v.  Dawes,  115  Mass.  601,  an  at- 
testing witness  is  declared  to  be  one  who  at  the  time  of  the  attestation 
would  be  competent  to  testify;  and  in  Morrill  v.  Morrill,  53  Vt.  78, 
"competency  to  testify"  must  exist  at  the  time  of  the  attestation. 

The  attestation  contemplated  the  subsequent  testimony  to  the  facts 
attested  when  the  will  should  be  proved.  The  incompetency  of  the 
husband  or  wife  to  testify  where  either  was  an  interested  party  at  the 
common  law  arose  out  of  the  unity  of  interest  and  of  personal  rela- 
tions. This  unity  of  interest  may  be  removed,  and  yet,  owing  to  the 
unity  and  confidential  nature  of  their  personal  relations,  the  common- 
law  rule  in  respect  to  competency  remain,  on  grounds  of  public  policy. 
Lucas  V.  Brooks,  18  Wall.  453,  31  L.  Ed.  779 ;  Giddings  v.  Turgeon, 
58  Vt.  110,  4  Atl.  711. 

It  is  conceded  that  the  unity  of  interest,  so  far  as  relates  to  property, 
has  been  done  away  with  by  statute  (Wilson  v.  Wilson,  43  Minn.  400, 
45  N.  W.  710),  and  the  general  disqualification  to  testify  on  the 
ground  of  interest  is  removed  by  Gen.  St.  c.  73,  §  7 ;  but  it  is  denied 
that  the  statute  has  removed  the  general  incompetency  growing  out  of 
the  marriage  relation.  But  the  only  limitation  upon  the  competency 
of  either  is  found  in  section  10,  which  provides  that  neither  party 
shall  be  examined  without  the  consent  of  the  other.  They  are  not 
thereby  made  incompetent  witnesses,  nor  are  they  to  be  classed  as 
such,  though  their  right  to  be  examined  is  contingent  upon  the  con- 
sent of  that  one  for  or  against  whom  the  witness  may  be  offered.  It 
does  not  follow  that  a  married  person  is  incompetent  to  attest  a  will 
because  the  husband  or  wife  of  such  person  is  a  beneficiary  under  the 
will.  He  can  only  become  incompetent  in  a  single  contingency,  and 
that  is,  in  case  such  interested  party  shall  become  a  contestant  on  the 
subsequent  probate  of  the  will.  If  the  latter  be  not  a  contesting  party, 
he  is  in  no  position  to  raise  the  objection,  and  he  may  not  choose  to 
do  it  if  he  is;  and  if  he  be  one  of  the  proponents,  he  thereby  consents 
to  the  testimony  of  the  attesting  witnesses.  The  contingency  which 
would  make  him  incompetent  may  never  arise,  and  if  it  does,  it  must 
be  deemed  to  arise  subsequent  to  the  act  of  attestation. 

In  the  case  at  bar,  then,  what  evidence  is  there  that  the  witness  is 
incompetent?  The  wife  is  proponent,  and  offers  to  examine  her  hus- 
band as  a  witness.  No  question,  therefore,  in  respect  to  his  compet- 
ency is  raised.  Incompetency  in  a  witness  is  not  presumed,  and  the 
question  is  to  be  determined  when  the  offer  to  examine  the  witness 
is  made,  and  then  the  facts  are  to  be  ascertained  by  the  court.  The 
witness  is  not  shown  to  be  incompetent  in  this  case,  and  his  evidence 
on  the  probate  of  the  will  was  properly  received.  In  Tillotson  v. 
Prichard,  GO  Vt.  107,  14  Atl.  302,  6  Am.  St.  Rep.  95,  it  is  -held  that 
the  wife  of  the  grantor  in  a  Minnesota  deed  was  a  competent  attest- 
ing witness  thereto,  under  the  provisions  of  the  statute  we  have  been 


Ch.  6)  EXECUTION   OF   WRITTEN   WILLS   AND   TESTAMENTS.  195 

considering,  and  the  court  say  "that  she  was  a  competent  witness,  and 
might  be  examined  with  the  consent  of  her  husband,"  and  also  held, 
as  we  do,  that  the  plaintiff,  by  offering  the  deed  in  evidence,, consented 
to  her  being  a  witness. 

2.  The  appellant  also  contends  that  if  the  husband  be  a  competent 
witness,  then  the  legacy  to  his  wife  should  be  held  void  under  the  stat- 
ute which  annuls  beneficial  devises,  etc.,  to  a  subscribing  witness  on 
account  of  the  marital  relation.  But  there  is  nothing  in  this  point. 
The  husband  has  no  direct  or  certain  interest  in  the  legacy  to  his  wife. 
It  is  absolutely  hers  in  her  own  right,  and  free  from  his  control.  Gen. 
St.  c.  69 ;  Wilson  v.  Wilson,  supra.  The  only  'devises  or  legacies 
which  the  statute  annuls  are  those  made  to  subscribing  witnesses, 
which  clearly  does  not  apply  to  the  husband  or  wife  of  the  legatee. 
—  In  England,  where  husband  and  wife  are  competent  witnesses  (Tayl. 
Ev.  pp.  1145,  1147),  the  statute  has  gone  further  (1  Vict.  c.  26,  §\15), 
and  also  avoids  gifts,  legacies,  and  devises  to  the  husband  or  wife^of 
an  attesting  witness.  It  could  not  be  done  without  the  statute.  This 
legislation  assumes  both  the  competency  of  the  witnesses  and  that  they 
had  no  interest  in  the  legacies  which  would  have  made  the  same  void 
without  the  aid  of  legislation  to  that  effect. 

The  construction  we  have  adopted  is  in  conformity  with  the  spirit 
of  modern  legislation  on  the  general  subject  of  the  rights  of  husband 
and  wife,  and  the  practical  results  will  no  doubt  be  no  more  serious 
than  in  the  case  of  parents  or  children,  who  may  unquestionably  attest 
deeds  and  wills  for  each  other.     1  Alb.  Law  J.  246. 

It  is  a  matter  largely  for  the  judgment  of  the  Legislature.  Judg- 
ment affirmed.^** 

65  "We  think  that  by  these  rules  the  wife  was  a  disinterested  witness. 
She  had  no  present,  certain,  and  vested  interest  in  the  legacy  given  to  her 
husband.  It  was  remote  and  contingent.  It  will  be  observed  that  this  is 
not  a  devise  of  real  estate.  The  will  contemplates  that  whatever  real 
estate  there  may  be  shall  be  sold  to  pay  the  legacies.  Now  the  wife  ha^ 
no  present,  vested  interest  in  such  a  legacy  to  the  husband.  It  is  his  own, 
to  dispose  of  at  his  pleasure,  and  there  are  many  contingencies  which  may 
intervene  to  prevent  the  wife  from  ever  acquiring  any  part  of  it.  We  think 
the  wife  was  a  competent  and  disinterested  witness."  Rothrock,  J.,  in  Haw- 
kins v.  Hawkins,  54  Iowa,  443,  446,  6  N.  W.  €99,  700  (1880). 

In  Lippincott  v.  Wikoff,  54  N.  J.  Eq.  107,  33  Atl.  305  (1895),  it  was  held 
that,  under  a  statute  making  the  husband  or  wife  of  any  party  interested  m 
a  suit  competent  and  compellable  to  give  evidence  on  behalf  of  any  party 
to  the  suit,  a  husband  was  a  competent  attesting  witness  to  a  will  under 
which  his  wife  took  as  devisee  and  legatee.  For  a  case  where  the  statutes 
leave  the  husband  or  wife  of  a  beneficiary  under  a  will  incompetent  to  tes- 
tify concerning  matters  connected  with  the  execution  of  the  will,  and  there- 
fore incompetent  attesting  witnesses,  see  Belledin  v.  Gooley,  157  Ind.  49.  GO 
N.  E.  706  (1901). 


LAST   WILLS  AND   TESTAMENTS.  (Part  1 


GUMP  V.  GOWANS  et  al. 

(Supreme  CV)urt  of  lUlnols,  1907.    226  111.  635,  80  N.  E.  1086,  117  Am.  St.  Rep. 

275.) 

Cartwright,  J.  On  November  11,  1902,  Mary  A.  Gowans  made 
her  last  will  and  testament,  by  which  she  devised  certain  tracts  of 
land  owned  by  her,  and  on  the  same  day  she  signed  and  acknowledged 
five  warranty  deeds,  in  which  her  husband,  Walter  Gowans,  joined, 
purporting  to  convey  to  the  grantees  named  therein  other  tracts  of 
land  not  devised  by  the  will,  reserving  to  herself  the  use,  benefit,  and 
control  of  the  said  lands  during  her  life,  and  reciting  in  each  a  con- 
sideration of  love  and  affection  and  $5.  The  will  and  deeds  were 
kept  by  her  in  a  candle  box  in  her  residence,  and  the  deeds  were  never 
delivered.  She  died  on  June  11,  1905,  and  on  June  23,  1905,  Walter 
Gowans  filed  in  the  probate  court  of  St,  Clair  county  his  petition  for 
the  probate  of  the  will.  A  cross-petition  was  afterward  filed,  alleging 
that  the  deeds  were  executed  as  required  by  law  in  case  of  wills,  and 
praying  that  they  should  be  admitted  to  probate.  The  probate  court 
admitted  the  will  to  probate,  but  denied  probate  of  the  other  instru- 
ments, and  on  appeal  to  the  circuit  court  a  like  order  was  made.  A 
writ  of  error  was  sued  out  of  this  court  to  review  the  order  of  the 
circuit  court. 

The  law  does  not  prescribe  any  particular  form  for  a  will,  but  only 
requires  that  it  shall  be  reduced  to  writing  and  signed  and  attested, 
in  the  presence  of  the  testator  or  testatrix,  by  two  or  more  credible 
witnesses.  If  those  conditions  are  complied  with,  and  the  intention 
of  the  maker  to  dispose  of  his  estate  after  death  is  sufficiently  mani- 
fest, the  instrument  will  be  entitled  to  probate  as  a  will  upon  the 
statutory  proof  being  made.  Robinson  v.  Brewster,  140  111.  649,  30 
N.  E.  683,  33  Am.  St.  Rep.  265 ;  Noble  v.  Tipton,  219  111.  182,  76  N. 
E.  151,  3  L.  R.  A.  (N.  S.)  645.  The  deeds  in  question  were  retained 
by  the  maker,  and  did  not  operate  as  conveyances  for  want  of  delivery. 
The  evidence  indicates  that  they  were  intended  to  become  operative 
after  her  death,  and  were  therefore  testamentary  in  character.  They 
were  not  signed  by  any  person  with  any  intention  of  attesting  the  sig- 
nature of  the  maker,  but  they  were  acknowledged  before  a  notary 
public,  who  affixed  his  signature  to  the  certificates  of  acknowledgment. 
Perhaps  the  certificates,  which  show  that  the  maker  acknowledged  to 
the  notary  that  she  signed  the  instruments,  would  be  sufficient  to  make 
him  a  subscribing  witness,  but  there  was  no  other  competent  witness. 

An  attempt  was  made  to  supply  the  other  witness  by  the  signature 
of  the  husband,  Walter  Gowans,  who  testified  that  he  was  present  and 
saw  his  wife  sign  the  deeds  and  that  she  saw  him  sign  them;  but  he 
signed  as  a  grantor,  and  not  as  a  subscribing  witness,  or  for  the  pur- 
pose of  attesting  her  signature.  If  he  had  signed  as  an  attesting  wit- 
ness, the  act  would  have  been  of  no  avail.     The  term  "credible,"  a« 


Ch.  6)  iJXECUTION   OF   WRITTEN   WILLS   AND   TESTAMENTS.  197 

applied  to  subscribing  witnesses  of  a  will,  means  competent  (Harp 
V.  Parr,  168  111.  459,  48  N.  E.  113),  and  the  competency  of  a  witness 
is  to  be  tested  by  his  status  at  the  time  of  the  attestation,  and  not  at 
the  time  when  the  will  is  presented  for  probate.  Fisher  v.  Spence,  150 
111.  253,  37  N..E.  314,  41  Am.  St.  Rep.  360.  The  incompetency  of 
husbands  and  wives  to  testify  as  witnesses  for  or  against  each  other 
applies  to  the  attestation  of  wills  (30  Am.  &  Eng.  Ency.  of  Law  [2d 
Ed.]  605),  and  our  statute  has  not  removed  the  common-law  disquali- 
fication. Chapter  51  of  the  Revised  Statutes  has  relaxed  the  common- 
law  rule  to  some  extent,  but  section  8  provides  that  nothing  in  the 
act  shall  affect  existing  laws  concerning  the  attestation  of  last  wills 
and  testaments. 

The  evidence  did  not  show  that  the  deeds  were  attested  by  two  com- 
petent witnesses,  and  the  judgment  of  the  court  was  therefore  correct. 
The  judgment  is  affirmed. 

Judgment  affirmed.''" 


JONES  V.  GRIESER. 
(Supreme  Court  of  Illinois,  1909.    238  111.  183,  87  N.  B.  295.) 

Hand,  J.  This  is  an  appeal  from  a  judgment  of  the  circuit  court 
of  De  Witt  county  admitting  to  probate  the  last  will  and  testament  of 
Jeremiah  Smith,  deceased.  It  appears  from  the  record  that  Jeremiah 
Smith  died  March  1,  1908 ;  that  he  owned  real  and  personal  property 
of  the  value  of  $10,000 ;  that  he  left  a  will,  by  which  he  gave  his  per- 
sonal property  to  his  sister,  Matilda  Jones,  absolutely,  and  gave  her 
the  use  of  his  real  estate  during  her  natural  life,  and  devised  the  fee  to 
her  son,  Marion  Willis  Jones.  W.  H.  Armstrong  and  W.  J.  Sprague 
were  named  as  executors  of  his  will,  and  they  were  also  the  attesting 
witnesses  to  the  execution  of  his  will.  The  county  court  held  said  at- 
testing witnesses,  by  reason  of  the  fact  that  they  were  executors,  were 
incompetent,  and  refused  to  admit  the  will  to  probate.  On  an  appeal 
by  Matilda  Jones  to  the  circuit  court,  that  court  held  Armstrong  and 
Sprague  were  competent  witnesses  and  admitted  the  will  to  probate, 
and  Nora  Grieser,  a  child  of  a  deceased  brother  of  the  testator,  has 
prosecuted  this  appeal. 

The  question  to  be  determined  in  this  case  is,  Were  W.  H.  Arm- 
strong and  W.  J.  Sprague  rendered  incompetent  as  witnesses  to  the 
execution  of  the  will  by  reason  of  the  fact  that  they  were  named  as 
executors  of  the  will?  The  statute  provides  that  a  will  shall  be  at- 
tested by  two  credible  witnesses.  The  word  "credible,"  as  used  in  the 
statute  means  "competent."    In  the  Matter  of  Noble,  124  111.  266,  15 

66  That  at  oommon  law  a  wife  is  not  a  competent  witness  to  her  hus- 
band's will,  see,  also.  Pease  v.  AUis,  110  Mass.  157,  14  Am,  Rep.  591  (1872). 
Ctompare  Dickinson  v.  Dickinson,  61  Pa.  401  (1869). 


198  LAST   WILLS  AND  TESTAMENTS.  (Part  1 

N.  E.  850.  A  credible  witness  to  the  execution  of  a  will  is  one  legally 
competent  to  testify  in  a  court  of  justice  to  the  facts  which  he  attests 
by  subscribing  his  name  to  the  will  (O'Brien  v.  Bonfield,  213  111.  428, 
72  N.  E.  1090),  and  the  competency  of  an  attesting  witness  is  to  be 
determined  from  the  facts  as  they  exist  at  the  time  he  attests  the  will, 
and  not  as  they  exist  at  the  time  the  will  is  offered  for  probate  (Fish- 
er V.  Spence,  150  111.  253,  37  N.  E.  314,  41  Am.  St.  Rep.  360) ;  and 
a  witness  who  for  any  legal  reason  is  disqualified  from  giving  testi- 
mony generally,  or  by  reason  of  interest  or  other  disqualifying  cause 
is  incompetent  to  testify  in  respect  to  the  particular  subject  under  in- 
vestigation, is  not  a  credible  witness  under  the  statute  (Boyd  v.  Mc- 
Connell,  209  111.  396,  70  N.  E.  649).  The  true  test  of  interest  as  to 
such  witness  is  whether  he  will  gain  or  lose  financially  as  the  direct 
result  of  the  proceeding.     Boyd  v.  McConnell,  supra. 

The  authorities  outside  of  Illinois  are  in  conflict  as  to  whether  an 
executor  named  in  a  will  has  such  an  interest  in  the  probate  of  the 
will  as  renders  him  incompetent  as  a  witness  to  the  execution  of  the 
will.  We  are  of  the  opinion,' however,  that  under  the  statute  of  this 
state  an  executor  has  such  a  direct  financial  interest  in  the  probate  of 
the  will  that  he  is  disqualified,  by  reason  of  such  interest,  as  a  witness 
to  the  execution  of  the  will.  He  clearly  has  an  interest  in  the  pro- 
bate of  the  will  to  the  extent  of  his  commissions  as  executor.  An 
executor,  also,  by  virtue  of  the  statute,  has  conferred  upon  him  certain 
duties,  which  are  accompanied  by  corresponding  rights,  prior  to  the 
time  the  will  is  admitted  to  probate,  such  as  to  cause  the  will  to  be 
presented  for  probate,  to  bury  the  deceased,  to  pay  the  necessary  fu- 
neral charges,  and  to  take  care  of  the  estate.  Kurd's  Rev.  St.  1908, 
c.  3,  §§  2,  4.  We  think,  therefore,  that  this  court  is  committed  to  the 
view  that  an  executor  is  not  a  competent  witness  to  the  execution  of 
a  will  which  names  him  executor.  Ferguson  v.  Hunter,  2  Gilman, 
657;  Bardell  v.  Brady,  172  111.  420,  50  N.  E.  124;  Sloan  v.  Sloan, 
184  111.  579,  56  N.  E.  952;  In  re  Tobin,  196  111.  484,  63  N.  E.  1021; 
Godfrey  v.  Phillips,  209  111.  584,  71  N.  E.  19 ;  Jones  v.  Abbott,  235 
111.  220,  85  N.  E.  279. 

We  are  therefore  of  the  opinion  that  Armstrong  and  Sprague  were 
not  competent  witnesses  to  establish  the  will,  unless  they  are  rendered 
competent  by  section  8  of  the  wills  act  (Hurd's  Rev.  St.  1908,  c.  148), 
which  reads  as  follows:  "If  any  beneficial  devise,  legacy  or  interest 
shall  be  made  or  given,  in  any  will,  testament  or  codicil,  to  any  per- 
son subscribing  such  will,  testament  or  codicil,  as  a  witness  to  the 
execution  thereof,  such  devise,  legacy  or  interest  shall,  as  to  such 
subscribing  witness,  and  all  persons  claiming  under  him,  be  null  and 
void,  unless  such  will,  testament  or  codicil  be  otherwise  duly  attested 
by  a  sufficient  number  of  witnesses  exclusive  of  such  person,  accord- 
ing to  this  act ;  and  he  or  she  shall  be  compellable  to  appear  and  give 
testimony  on  the  residue  of  such  will,  testament  or  codicil,  in  like 
manner  as  if  no  such  devise  or  bequest  had  been  made.     But  if  such 


Ch.  6)  EXECUTION  OP  WRITTEN   WILLS  AND   TESTAMENTS.  199 

witness  would  have  been  entitled  to  any  share  of  the  testator's  estate, 
in  case  the  will,  testament  or  codicil  was  not  established,  then  so  much 
of  such  share  shall  be  saved  to  such  witness  as  shall  not  exceed  the 
value  of  the  said  devise  or  bequest  made  to  him  or  her  as  aforesaid." 
Kurd's  Rev.  St.  $908,  p.  2193. 

It  appears  froiflp^'hat  has  been  said  that  an  executor  is  disqualified 
as  a  witness  to  a'will  on  the  ground  of  interest.  The  interest  which 
he  has,  however,  like  that  of  a  devisee  or  legatee,  grows  out  of  and 
by  virtue  of  the  execution  of  the  will.  In  the  case  at  bar  the  attest- 
ing witnesses  were  competent  to  attest  the  execution  of  the  will  in 
question  at  the  time  they  signed  the  will  as  attesting  witnesses,  except 
by  reason  of  the  fact  that  they  were  named  as  executors.  By  the  act 
of  attesting  the  will  the  interest  which  made  tnem  incompetent  by 
reason  of  their  being  named  in  the  will  as  executors  made  them  incom- 
petent as  witnesses  to  its  execution.  Such  would  be  the  case  with  a 
devisee  or  legatee  who  attests  a  will.  The  section  of  the  statute  above 
referred  to  was  passed  solely  with  a  view  to  prevent  the  destruction 
of  a  will  which  would  otherwise  be  a  valid  will  except  that  the  will, 
as  executed,  contained  some  provision  which  made  its  establishment 
according  to  the  forms  of  law  necessary  by  the  calling  of  witnesses 
who  took  some  interest  under  the  will.  If  the  incompetency  of  the 
witnesses  existed  outside  of  the  fact  that  the  will  gave  them  a  benefi- 
cial interest  in  the  testator's  estate,  section  8  of  the  wills  act  does  not 
remove  the  incompetency  of  the  witnesses  to  the  will.  If,  however, 
the  incompetency  of  the  witness  arises  by  the  act  of  attesting  a  will 
which  gives  the  witness  some  interest  in  the  testator's  estate,  the  stat- 
ute does  apply,  and  under  that  section  of  the  statute,  while  the  wit- 
ness cannot  take  under  the  will,  nevertheless  he  may  be  called  and 
the  will  established  by  his  evidence. 

The  statute  uses  the  words  "devise,  legacy  or  interest."  The  word 
"interest,"  therefore,  must  be  given  some  force  and  efifect,  and,  as 
applied  to  a  case  like  this,  it  clearly  designates  the  interest  created  in 
the  attesting  witness  by  his  being  named  as  executor  in  the  will ; 
that  is,  the  interest  which  the  witness  receives  as  executor.  The 
courts,  in  construing  a  statute,  should  give  force  and  effect  to  all  the 
language  of  the  statute.  Decker  v.  Hughes,  68  111.  33.  A  case  may 
fall  within  the  letter  of  a  statute  and  not  within  its  spirit,  and  it  may 
fall  within  the  spirit  and  not  within  the  letter  of  a  statute.  No  valid 
reason  can  be  suggested  why  a  devisee  or  legatee  who  signs  as  a 
witness  to  a  will,  and  who  may  take  an  interest  in  the  estate  of  great 
value  to  him  under  the  will,  should  be  compelled  to  appear  and  give 
evidence  on  the  application  for  the  probate  of  the  will  and  thereby 
lose  his  legacy  or  devise,  while  an  executor  who  only  received  a  few 
dollars  by  way  of  commissions,  cannot  be  required  to  give  evidence  in 
support  of  a  will  because  of  his  interest.'  In  construing  said  section 
8,  therefore,  the  word  "interest"  cannot  be  disregarded,  and  we  are 


200  LAST   WILLS  AND  TESTAMENTS.  (Part  1 


of  the  opinion  it  was  inserted  in  said  section  of  the  statute  with  a 
view  to  cover  a  right  created  by  a  will  other  than  that  which  might 
properly  be  designated  as  a  devise  or  legacy,  and  may  be  fairly  held  to 
cover  such  a  contingent  and  uncertain  interest  asthat  which  would 
accrue  to  an  executor  by  virtue  of  his  appointmei|^^^^ 

We  are  of  the  opinion,  therefore,  that  an  e^^^^  named  in  a 
will  who  has  signed  the  will  as  an  attesting  witnes^BPly  falls  with- 
in the  spirit  of  said  section  8  of  the  statute,  and  that  such  executor 
may  be  required  to  appear  and  give  evidence  in  support  of  the  exe- 
cution of  the  will.  The  establishment  of  a  will  by  the  testimony  of  an 
executor  will,  however,  have  the  effect,  under  the  last  clause  of  said 
section,  to  bar  him  from  acting  as  executor  of  the  will  or  from  par- 
ticipating in  the  administration  of  the  estate  of  the  testator  as  admin- 
istrator with  will  annexed  or  otherwise. 

The  circuit  court  did  not  err  in  holding  that  W.  H.  Armstrong  and 
W.  J.  Sprague  were  competent  witnesses  by  whom  to  establish  the 
execution  of  the  will  of  Jeremiah  Smith,  deceased.  The  judgment  of 
the  circuit  court  will  be  affirmed. 

Judgment  affirmed.'*'' 

67  In  Noble  v.  Burnett,  10  Rich.  Law  (S.  O.)  505  (1857).  It  was  held  that 
an  executor  witness  loses  commissions;  but  whether  he  loses  the  office  of 
executor  as  well  was  not  decided.  In  Fearn  v.  Postlethwaite,  240  111.  626,  at 
page  630,  S8  N.  E.  1057,  at  page  1058  (1909),  the  court  stated  that  in  Jones 
V.  Grieser,  supra,  the  court  "held  that  the  executor  could  be  required  to 
appear  and  give  evidence  in  support  of  the  execution  of  the  will,  but  that 
the  establishment  of  the  will  by  the  evidence  of  the  executor  would  debar 
him  from  acting  as  executor  or  In  ajiy  way  participating  in  the  admin- 
istration of  the  estate." 

That  an  executor  is  an  incompetent  witness,  see  Taylor  v.  Taylor,  1  Rich. 
Law  (S.  0.)  531  (1845);  Workman  v.  Dominick,  3  Strob.  (S.  C.)  589  (1R19) ; 
Morton  v.  Ingram.  33  N.  C.  368  (1850) ;  Gunter  v.  Gunter,  48  N.  C.  441  (1856). 
Where  the  executor  is  not  also  a  legatee  or  devisee,  the  weight  of  author- 
ity is,  however,  the  other  way.  See  cases  cited  in  77  Am.  St.  Rep.  466,  note, 
and  15  Am.  &  Eng.  Ann.  Cas.  789,  note,  and  also  Hiatt  v.  McColley,  171  Ind. 
81,  85  N.  E.  772  (1908);  Wi.sehart  v.  Applegate,  172  Ind.  313,  88  N.  E.  501 
a909) ;    Geraghty  v.  Kilroy.  103  Minn.  286,  114  N.  W.  888  (1908). 

In  In  re  Kessler's  Estate,  221  Pa.  314,  70  Atl.  770.  128  Am.  St.  Rep.  741 
vl908),  a  witness  who  was  one  of  the  executors  under  the  will,  who  was  a 
trustee  and  an  officer  In  a  church  to  which  part  of  the  income  and  ultimately 
part  of  the  corpus  of  the  trust  estate  was  to  go,  and  who  had  various  options 
and  rights  regarding  the  trust  property,  was  held  not  to  be  a  disinterested 
witness,  though  the  fact  that  he  was  executor  would  not  alone  have  disqual- 
ified him.  On  the  effect  of  the  witness'  Interest  in  the  institution  beneficiary, 
see  15  Am.  &  Eng.  Ann.  Cas.  794.  note. 

"If  the  question  were  new,  we  see  no  good  reason  why  the  executor  Is  not 
a  credible  or  competent  witness  to  a  will  under  which  he  takes  no  Interest, 
but  is  named  as  executor.  It  is  at  the  time  altogether  contingent  and  un- 
certain whether  he  will  ever  be  called  upon  to  perform  the  duty  of  execu- 
tor. He  may  die  before  the  testator.  The  testator  may  revolve  the  will,  or 
make  a  new  one  and  appoint  another  executor.  But,  if  it  be  regarded  as 
settled  at  the  time  that  he  Is  to  be  executor,  the  only  Interest  he  can  be 
gald  to  acriuire  is  to  perform  a  service,  for  which  he  is  to  receive  a  bare 
compensation.  Just  in  proportion  to  the  service  performed.  This  can  hard- 
ly be  regarded  as  a  legal  interest,  by  any  rule  that  has  ever  been  recognized 
In  the  law.     If  a  fixed  per  cent  were  given  by  law,  irrespective  of  the  ae- 


Ch.  6)  EXECUTION  OF   WRITTEN   WILLS  AND  TESTAMENTS.  201   , 


O'BRIEN  V.  SPALDING. 
(Supreme  Court  of  Georgia,  1897.     102  Ga.  490,  31  S.  E..100,  66  Am.  St.  Rep 

909.  •» 

Fish,  J.°^    £j|^Rint  is  made  that,  on  the  trial  of  the  present  case, 


Mr.  Kin^  w^^^Hiduced  as  a  witness  in  behalf  of  the  propounder 
of  the  paper  wB^d  for  probate,  and  was  allowed,  over  objection,  to 
testify  concerning  its  execution  by  Mrs.  Flynn,  as  to  her  mental  ca- 
pacity to  make  a  will,  and  as  to  what  passed  between  them  when  he 
read  over  to  her  and  explained  the  meaning  of  the  instrument  he  had 
prepared  for  her  to  sign.  It  is  contended  by  counsel  for  the  plaintiffs 
in  error  that,  as  Mr.  King  sustained  toward  the  testatrix  the  attitude 
of  attorney  and  confidential  adviser,  he  was  an  incompetent  witness 
to  testify  concerning  any  facts  or  circumstances,  knowledge  of  which 
he  had  gained  while  attending  to  his  professional  duties  in  the  prem- 
ises. 

We  do  not,  however,  understand  the  law  to  be  that  the  plaintiffs  are 
at  liberty  to  urge  this  objection.  The  purpose  of  the  common-law 
rule  declaring  that  communications  between  attorney  and  client  are 
privileged  is  to  protect  the  client.  Greenough  v.  Gaskell,  1  Mylne  & 
K.  98,  103.  Strangers  are  not  at  liberty  to  invoke  this  rule  in  their 
behalf.  Accordingly,  it  was  early  decided  in  England  that:  "In  a 
suit  by  next  of  kin  of  a  testator,  challenging  a  residuar)^  gift  made 
by  his  will  to  the  executors,  on  the  ground  that  it  was  made  on  a  se- 
cret trust  for  an  illegal  purpose,  *  *  *  communications  had  be- 
tween the  testator  and  the  solicitor  employed  by  him  to  prepare  the 
will,  with  reference  to  the  will  and  the  trusts  thereof,  were  not  privi- 

lual  services  performed,  It  would  be  quite  a  different  case."  Poland,  C.  J. 
in  Richardson  v.  Richardson,  35  Vt.  238.  242  (1862). 

Where  an  executor  is  a  competent  witness,  his  wife,  of  course,  is  competent. 
Stewart  v.  Harriman.  56  N.  H.  25.  22  Am.  Rep.  408  (1875) ;  Piper  v.  Moulton, 
72  Me.  155  (1881) ;  Will  of  Lyon,  96  Wis.  339,  71  N.  W.  362,  65  Am.  St.  Rep. 
52  (1897).  And  where  he  is  not  competent  It  is  held  in  some  jurisdictions  that 
she  is  not.  Fearn  v.  Postlethwaite,  240  111.  626,  88  N.  E.  1057  (1909).  In  that 
Illinois  case  the  whole  will  was  held  void  where  she  was  a  witness,  whereas 
if  he  had  been  a  witness  the  rule  of  Jones  v.  Grieser,  supra,  would  have 
applied.  That  unfortunate  result  was  reached  because  the  Illinois  court  re- 
fuses to  follow  Wiuslow  V.  Kimball,  ante,  p.  192.  See  Fisher  v.  Speuce,  150 
111.  253,  37  N.  E.  314,  41  Am.  St.  Rep.  360  (1894). 

That  a  witness  who  is  a  beneficiary  under  a  secret  trust  may  still  take 
under  the  trust  is  held  in  O'Brien  v.  Condon  [1905]  1  Irish  R.  51.  But  see 
In  re  Fleetwood,  15  Ch.  D.  594,  contra.  The  reason  why  the  beneficiary  of 
the  secret  trust  may  take  is  because  he  does  not  take  under  the  will,  but 
under  the  decree  of  equity.  O'Brien  v.  Condon,  supra.  The  same  reason 
makes  the  devisee  who  takes  subject  to  a  secret  oral  trust  unable  to  take, 
even  as  trustee,  if  he  is  a  necessary  witness  to  the  will,  and  that  whether 
the  trust  is  enforceable  or  unenforceable ;  for  he  alone  takes  under  the  will. 
Moran  v.  Moran,  104  Iowa,  216,  73  N.  W.  617,  39  L.  R.  A.  204,  65  Am.  St.  Rep. 
443  (1897).  But  that  a  trustee  under  a  trust  expressed  in  the  will  may  be  a 
competent  witness,  see  Key  v.  Weathersbee,  43  S.  C.  414,  21  S.  E.  324,  49  Am. 
St-.  Rep.  846  (1895). 

68  The  statement  of  facts  is  omitted,  and  part  only  of  the  opinion  is  given. 


202  LAST   WILLS   AND   TESTAMENTS.  (Part  1 

leged."    Russell  v.  Jackson,  8  Eng.  L.  &  Eq.  89,  15  Jur.  1117,  9  Hare, 

387.  - 

The  correctness  of  this  position  has  received  the  unqualified  recog- 
nition of  the  Supreme  Court  of  the  United  States.  Blackburn  v. 
Crawford,  3  Wall.  176,  18  L.  Ed.  186.  Indeed,  the  doctrine  laid  down 
by  the  English  courts  appears  to  have  become  the:^|riTily  established 
law  of  this  country.  Graham  v.  O'Fallon,  4  Mj!?,'338;  Layman's 
Will,  40  Minn.  371,  42  N.  W.  286;  McMaster  v.^'^C'riven,  85  Wis. 
162,  55  N.  W.  149,  39  Am.  St.  Rep.  828;  Scott  v.  Harris,  113  111. 
447 ;  Doherty  v.  O'Callaghan,  157  Mass.  90,  31  N.  E.  726,  17  L.  R.  A. 
188,  34  Am.  St.  Rep.  258.  In  the  case  last  cited,  Lathrop,  J.,  in  pro- 
nouncing the  opinion  of  the  court,  said :  "Undoubtedly,  while  the  tes- 
tator lives,  the  attorney  drawing  his  will  would  not  be  allowed,  with- 
out the  consent  of  the  testator,  to  testify  to  communications  made  to 
him  concerning  it,  or  to  the  contents  of  the  will  itself;  but  after  his 
death,  and  when  the  will  is  presented  for  probate,  we  see  no  reason 
why,  as  matter  of  public  policy,  the  attorney  should  not  be  allowed  to 
testify  as  to  directions  given  to  him  by  the  testator,  so  that  it  may  ap- 
pear whether  the  instrument  presented  for  probate  is  or  is  not  the  will 
of  the  alleged  testator."    ♦    *    * 

Judgment  affirmed.^'* 


SECTION  9.— INCORPORATION  BY  REFERENCE 


HANNIS  v.  PACKER. 

(High  Court  of  Chancery,  1752.    Ambl.  556.) 

Mary  Meredith,  being  entitled  to  a  real  and  personal  estate,  du\y 
made  her  will  29th  January,  1727,  and  devised  to  her  sisters  all  the 
rest  and  residue  of  her  real  and  personal  estate,  after  payment  of  her 
debts  and  legacies,  and  made  them  executrixes. 

The  testator  some  time  afterwards  made  a  codicil,  and  gave  plain- 
tiff a  legacy  in  the  words  following:  "This  I  desire  may  be  performed 
by  my  loving  sisters,  to  give  i200  to  my  cousin  Edward  Hannis." 
But  this  codicil  was  not  executed  in  the  presence  of  any  witnesses. 

The  question  made  was,  Whether  the  £200  legacy,  given  by  the  codi- 
cil, was  a  charge  upon  the  real  estate. 

Lord  Hardwicke,  Chancellor.  When  real  estate  is  duly  devised 
to  trustees,  and  is  well  charged,  by  a  will  duly  executed,  with  debts 
and  legacies,  debts  which  are  contracted  after  making  the  will,  or 
legacies  given  by  a  codicil,  though  not  duly  executed,  will  be  a  charge 
upon  the  real  estate ;    for  the  real  estate  was  well  charged  by  the  will 

50  That  a  testator  who  requests  his  attorney  to  attest  the  will  waives  the 
objection  of  privilege,  see  McMaster  v.  Scriven.  cited  in  the  prnicipal  case. 
On  privilege  of  communications  to  attorney  during  the  preparation  of  a  will, 
see  GG  Am.  St  Rep.  229,  note ;   17  L.  R.  A.  (N.  S.)  108,  note. 


Ch.  6)  EXECUTION   OF   WRITTEN   WILLS   AND   TESTAMENTS.  203 

with  the  debts  and  legacies ;  and  it  is  immaterial  by  what  instrument- 
they  appear,  provided  such  instrument  has  been  proved  as  part  of 
the  will ;  and  when  that  is  done,  it  is  sufficient  to  denote  the  trust,  and 
that  it  is  part  of  what  was  intended  to  be  comprised.^" 


CARLETON  ex  dem.  GRIFFIN  v.  GRIFFIN. 
(Court  of  King's  Bench,  1758.    1  Burr.  549.) 
See  post,  p.  339,  for  a  report  of  the  case. 


NEWTON  V.  SEAMAN'S  FRIEND  SOCIETY. 

(Supreme  Judicial  Court  of  Massachusetts,  1881.     130  Mass.  91.) 

Gray,  C.  J.®^  If  a  will,  executed  and  witnessed  as  required  by 
statute,  incorporates  in  itself  by  reference  any  document  or  paper 
not  so  executed  and  witnessed,  whether  the  paper  referred  to  be  in 
the  form  of  a  will  or  codicil,  or  of  a  deed  or  indenture,  or  of  a  mere 
list  or  memorandum,  the  paper  so  referred  to,  if  it  was  in  existence 
at  the  time  of  the  execution  of  the  will,  and  is  identified  by  clear 
and  satisfactory  proof  as  the  paper  referred  to  therein,  takes  effect 
as  part  of  the  will,  and  should  be  admitted  to  probate  as  such.  Allen 
V.  Maddock,  11  Moore,  P.  C.  427;  Singleton  v.  Tomlinson,  3  App. 
Gas.  404;  Jackson  v.  Babcock,  12  Johns.  (N.  Y.)  389;  Tonnele  v. 
Hall,  4  N.  Y.  140;  Chambers  v.  McDaniel  (N.  C.)  226;  Beall  v.  Cun- 
ningham, 3  B.  Mon.  (Ky.)  390,  39  Am.  Dec.  469;  Harvy  v.  Chouteau, 
14  Mo.  587,  55  Am.  Dec.  120.    *    *    * 

In  the  present  case,  the  testator  by  the  third  codicil  expressly  re- 
vokes that  part  of  the  will  which  gives  directions  for  the  payment  of 
legacies,  and  orders  and  directs  his  executors  to  pay  the  legacies  men- 
tioned in  his  will  and  codicils  as  nearly  as  may  be  according  to  the 
directions  written  in  a  book  by  Melvin  W,  Pierce,  signed  by  the  tes- 
tator and  witnessed  by  Pierce.  The  book  admitted  to  probate  con- 
tains such  directions,  so  written,  signed  and  witnessed,  specifying 
the  property  out  of  which  each  legacy  is  to  be  paid;  and,  with  the 
exception  of  two  memoranda  in  the  margin,  which  were  excluded  from 
the  probate,  is  agreed  by  the  parties  to  have  been  in  its  present  form 
at  the  time  of  the  making  of  the  third  codicil.  There  is  no  doubt, 
therefore,  of  the  identity  of  the  document  referred  to,  nor  of  its  ex- 

60  But  where  the  testator  charges  his  real  estate  with  legacies  or  annuities 
which  he  shall  thereafter  give  and  charge,  it  is  not  charged  with  such 
subsequent  legacies  or  annuities  unless  the  will  giving  and  charging  them  is 
executed  as  required  for  a  will  of  real  estate.  That  is  because  otherwise 
"that  is  only  an  attempt  to  reserve  by  a  will  duly  executed  a  power  to  charge 
by  a  will  not  duly  executed."     Rose  v.  Cunynghame,  12  Ves.  29,  38  (180.5). 

61  The  statement  of  facts  is  omitted,  and  part  only  of  the  opinion  is  given- 


204  LAST   WILLS   AND   TESTAMENTS.  (Part  1 

istence  at  the  date  of  the  execution  of  the  testamentary  instrument 
which  refers  to  it. 

The  fact  that  the  book  was  in  the  possession  and  control  of  the  tes- 
tator might  require  a  close  scrutiny  of  the  evidence  that  it  remained 
in  the  same  condition  as  at  the  time  of  the  execution  of  the  codicil, 
if  there  were  any  controversy  upon  that  point,  but  is  otherwise  im- 
material. It  is  not  necessary  that  every  portion  of  a  will  should  be 
verified  by  the  signature  of  the  testator  and  the  attestation  of  the  wit- 
nesses ;  it  is  sufficient  that  the  different  sheets  or  papers  should  clear- 
ly appear  upon  their  face,  or  by  extrinsic  evidence,  to  have  formed 
part  of  the  will  at  the  time  of  its  execution  and  attestation.  Ela  v. 
Edwards,  16  Gray  (Mass.)  91,  99.    Marsh  v.  Marsh,  1  Sw.  &  Tr.  528. 

The  document  in  question,  which  was  in  law  part  of  the  will,  hav- 
ing by  mistake  not  been  presented  for  probate  with  the  will,  the  pro- 
bate court  had,  and  rightly  exercised,  the  power  to  admit  it  to  probate 
afterwards.  Waters  v.  Stickney,  12  Allen  (Mass.)  1,  90  Am.  Dec. 
122;  Musser  v.  Curry,  3  Wash.  C.  C.  481,  Fed.  Cas.  No.  9,973.  De- 
cree affirmed.*^ 


FOSSELMAN  v.  ELDER. 

(Supreme  Court  of  Pennsylvania,  1881.     98  Pa.  159.) 

Sterrett,  J.^^  The  facts  upon  which  the  question  of  law  in  this 
case  arose  were  either  admitted  or  established  by  the  verdict. 

In  the  second  item  of  her  will,  dated  July  18,  1878,  the  defendant's 
testatrix,  made  the  following  provision  for  the  plaintiff,  viz. :  "I  do 
will,  devise  and  bequeath  to  Isabella  Fosselman   (who  has  lived  with 

6  2  "The  result  of  the  authorities,  both  before  and  spice  the  late  act,  ap- 
pears to  be  that,  when  there  is  a  reference  in  a  duly  executed  testamentary 
instrument  to  another  testamentary  instrument  by  such  terms  as  to  make 
it  capable  of  Identification,  it  is  necessarily  a  subject  for  parol  evidence,  and 
that  when  the  parol  evidence  suflaciently  proves  that,  in  the  existing  cir- 
cumstances, there  is  no  doubt  as  to  the  instrument,  it  Is  no  objection  to  it 
that,  by  possibility,  circumstances  might  have  existed  in  which  the  instru- 
ment referred  to  could  not  have  been  identified."  Right  Hon.  T.  Pemberton 
Iveigh.  in  Allen  v.  Maddock,  11  Moore.  P.  C.  427,  461  (185S).  In  In  re  Bres- 
ler's  Estate,  155  Mich.  567,  119  N.  W.  1104  (1909).  the  account  books  of  testa- 
tor were  held  incoiiiorated  into  the  will  by  reference,  so  as  to  charge  against 
testator's  daughter  an  advancement  made  to  her  husband. 

In  In  the  Goods  of  Ralme.  [1897]  P.  261,  a  catalogue  incorporated  In  a  will 
by  reference  and  too  big  to  copy  without  too  great  expense  was  not  required 
to  be  included  in  the  probate.  The  bequest  was  of  all  testator's  books  enu- 
merated in  his  library  catalogue,  and  the  catalogue  was  placed  by  the  court 
in  the  custody  of  the  college  receiving  the  bequest. 

By  proper  reference  a  testator  may  inconiorate  in  his  will  the  will  of  an- 
other, so  as  to  adopt  its  provisions  for  the  disposition  of  his  own  property. 
Nightingale  v.  Phillips,  29  R.  I.  175,  72  Atl.  220  (1908). 

On  incorporation  by  reference  In  general,  see  68  L.  R.  A.  353.  note;  107 
Am.  St.  Rep.  72,  note;  1  Am.  &  Eng.  Ann.  Cas.  395,  note;  4  Prob.  Rep.  Ann. 
444,  note;    13  Prob.  Rep.  Ann.  Ill,  note. 

•  «  The  statement  of  facts  and  the  opinion  of  the  trial  judge  are  omitted. 


Ch.  6)  EXECUTION   OF   WRITTEN   WILLS   AND   TESTAMENTS.  205 

me  many  years),  the  house  and  lot  wherein  I  now  live,  together  witt 
all  the  furniture  and  personal  property  that  may  be  therein  at  the  tim« 
of  my  decease;  by  furniture  and  personal  property  I  mean  every- 
thing I  may  have  at  my  decease,  except  notes  and  bonds,  and  evidence! 
of  debt,  and  also  one  thousand  'dollars  in  cash,  to  be  paid  to  her  as 
soon  as  practicable  after  my  decease,  provided  nevertheless  the  lega- 
cies herein  bequeathed  shall  be  forfeited  if  she  claims  any  compensa- 
tion, for  services  rendered  me,  from  my  estate." 

The  testatrix  having  died  suddenly  in  January,  1880,  the  will  wa5 
duly  probated  a  few  days  thereafter,  and  letters  testamentary  issued 
to  defendant,  the  executor  therein  named.  While  he  and  the  apprais- 
ers were  engaged  in.  making  the  inventory,  a  sealed  envelope  was 
found  among  the  valuable  papers  of  the  deceased,  on  which  the  fol- 
lowing words,  addressed  to  the  plaintiff,  were  indorsed,  viz. :  "Dear 
Bella,  this  is  for  you  to  open."  The  envelope  was  immediately  hand- 
ed to  her.  and  being  opened  in  .the  presence  of  the  executor  and  ap- 
praisers, it  was  found  to  contain  a  paper,  of  which  the  following  is  a 
copy,  viz.: 

"Lewistown,  Oct.  2,  1879. 

"My  wish  is  for  you  to  draw  this  2,000  dollars  for  your  own  use 
should  I  die  sudden.  Elizabeth  Fosselman." 

It  also  contained  a  note  for  $2,000,  made  by  the  trustees  of  the 
Presbyterian  Church  of  Lewistown,  dated  October  2,  1879,  and  pay- 
able to  the  order  of  testatrix  one  year  after  date,  with  interest  at  the 
rate  of  five  per  cent. 

After  a  memorandum  of  these  papers  was  made  by  the  appraisers 
the  executor  took  possession  of  them;  and  the  right  of  the  plaintiff 
to  collect  the  note  or  receive  the  proceeds  thereof  having  been  denied 
by  the  residuary  legatees,  an  amicable  issue  was  framed  between  her 
and  the  executor,  to  test  her  right  thereto.  On  the  trial,  there  was  no 
dispute  as  to  any  of  the  material  facts.  It  was  conclusively  proved 
by  two  witnesses  that  the  indorsement  on  the  envelope,  and  the  paper 
of  which  the  foregoing  is  a  copy,  were  both  in  the  handwriting  of 
Mrs.  Fosselman,  and  there  was  not  the  slightest  evidence  to  cast  any 
suspicion  on  the  integrity  of  the  transaction.  The  learned  judge  sub- 
mitted the  case  to  the  jury,  with  instructions  to  render  a  verdict  in 
favor  of  the  plaintiff,  unless  they  found  that  the  said  indorsement 
and  paper  were  not  genuine,  or  had  been  fraudulently  altered;  sub- 
ject to  the  opinion  of  the  court  on  the  question,  whether  the  paper  of 
October  2,  1879,  in  connection  with  the  accompanying  note  of  same 
date  and  the  indorsement  on  the  envelope,  is  a  testamentary  disposi- 
tion of  the  note  or  the  proceeds  thereof. 

In  his  opinion  on  the  reserved  question,  the  learned  judge  has  con- 
clusively shown  that  the  paper  referred  to  is  testamentary  in  its  char- 
acter, intended  to  take  effect  upon  the  death  of  Mrs.  Fosselman,  and 
clearly  designated  the  accompanying  note  as  the  subject  of  the  be- 
quest.    These  conclusions  are  so  fully  sustained  by  both  reason  and 


206  LAST  WILLS   AND   TESTAMENTS.  (Part   1 

authority  that  it  is  unnecessary  to  add  anything  to  what  has  been  so 
well  said,  in  the  opinion  of  the  court  below,  on  that  subject. 

The  only  remaining-  question  is  whether  the  testatrix  has  sufficiently 
designated  the  plaintiff  as  the  object  of  her  bounty  in  the  paper  that 
is  claimed  to  operate  as  a  codicil  to  her  will.  The  court  below  held 
that  she  had  not,  and  accordingly  entered  judgment  in  favor  of  the 
defendant  non  obstante  veredicto.  In  this  we  think  there  was  error. 
It  is  true  the  testamentary  paper  of  October  2,  1879,  does  not  desig- 
nate the  plaintiff  by  name,  and  if  we  had  no  written  evidence  to  show 
who  was  meant  by  the  pronoun  "you,"  the  bequest  of  the  note  would 
be  void  for  uncertainty ;  but  it  is  a  settled  fact  that  the  envelope  is 
addressed  to  the  plaintiff,  and  why  should  not  that  indorsement  in 
the  handwriting  of  the  testatrix  be  taken  as  part  of  the  testamentary 
disposition?  It  is  well  settled  that  a  will  may  be  written  on  several 
separate  pieces  of  paper.  It  is  not  even  essential  to  its  validity  that 
the  different  parts  should  be  physically  united ;  it  is  sufficient  if  they 
are  connected  by  their  internal  sense,  or  by  a  coherence  and  adaptation 
of  parts.    Wikoff's  Appeal,  15  Pa.  281,  53  Am.  Dec.  597. 

It  was  held  in  Ginder  v.  Farnum,  10  Pa.  98,  that  where  a  will  is 
written  on  several  sheets  of  paper,  fastened  together  by  a  string,  proof 
by  two  witnesses  of  the  signature  of  the  testator  at  the  end  thereof 
is  sufficient;  and  that  the  question  whether  there  has  been  a  subse- 
quent fraudulent  addition  to  or  alteration  of  the  instrument  is  for 
the  jury,  as  in  other  cases.  In  the  Goods  of  Wedge,  2  Notes  of  Cases, 
a  portion  of  a  letter  was  admitted  to  probate  as  the  will  of  Jane  Wedge, 
who,  on  the  third  page  of  the  letter  wrote,  and,  in  the  presence  of  two 
witnesses,  as  required  by  the  English  statute,  subscribed  her  name 
to  the  following,  viz. :  "When  I  dey  I  would  like  you  to  bury  me  and 
take  all  I  got  for  your  treatment  to  me,  and  by  somethin  for  your 
little  girl."  The  subscribing  witness  testified  that  after  the  paper  was 
signed  and  attested  the  deceased  folded  up  the  letter,  and  in  their  pres- 
ence wrote  the  superscription  it  bore.  In  holding  tliat  the  paper  was 
clearly  entitled  to  probate,  the  court  said :  "The  letter  is  addressed  to 
Mr.  Henry  Frost,  and  by  'you'  the  testatrix  could  mean  no  other  per- 
son to  be  legatee  than  the  person  she  addressed.  I  am  of  opinion, 
therefore,  that  the  person  is  executor  according  to  the  tenor,  and  that 
probate  should  pass  to  him."  That  case  is  cited  with  approval  in  the 
Goods  of  Taylor,  4  Notes  of  Cases,  290,  in  which  Mrs.  Taylor  made 
her  will  in  the  form  of  a  letter,  addressed  on  the  outside  to  Sir  George 
Simpson,  and,  after  bequeathing  her  personal  effects  to  her  daughter, 
added  the  following:  "I  hereby  appoint  you  my  executor  to  carry 
this  my  will  into  effect."  Administration  with  the  paper  annexed  was 
claimed  by  the  daughter  on  the  ground  that  no  executor  was  desig- 
nated in  the  will ;  but  the  address  on  the  letter  was  admitted  to  show 
that  by  "you"  the  testatrix  meant  Sir  George  Simpson,  the  person  to 
whom  the  letter  was  addressed,  and  probate  was  accordingly  decreed 
to  him  as  executor. 


Ch.  6)  EXECUTION   OP   WRITTEN   WILLS   AND   TESTAMENTS.  207 

In  both  these  cases  no  envelope  was  used.  The  letters  were  in  the 
form  generally  in  use  before  the  introduction  of  envelopes;  but  that 
fact  cannot  affect  the  principle.  A  separate  paper  inclosed  and  sealed 
up  in  an  envelope  is  just  as  much  a  part  of  the  letter  as  if  the  name 
of  the  person  to  whom  it  is  addressed  was  indorsed  on  the  paper 
itself.  There  is  no  room  in  either  case  to  doubt  that  the  writing  in- 
side is  addressed  to  the  person  whose  name  is  written  outside ;  and 
so  far  as  security  against  fraudulent  alteration  or  substitution  of  one 
paper  for  another  is  concerned,  the  one  is  just  as  safe  as  the  other 
before  the  seal  is  broken.  Either  of  them  is  more  secure  than  sep- 
arate papers  attached  merely  by  a  string,  as  in  Ginder  v.  Farnum, 
supra. 

It  is  also  urged,  as  an  objection  to  considering  the  address  on  the 
envelope  as  a  part  of  the  testamentary  paper,  that  the  former  was 
written  after  the  other  was  signed,  and  therefore  the  letter  should  not 
be  considered  as  having  been  signed  at  the  end  thereof,  as  the  statute 
requires;  but  the  objection  is  without  merit.  It  assumes  what  may  or 
what  may  not  have  been  the  fact.  It  is  not  an  uncommon  thing  for 
persons  to  indorse  the  address  before  writing  the  letter;  but  if  it 
were  shown  affirmatively  that  the  address  on  the  envelope  was  written 
last  in  order  of  time,  it  would  be  unimportant.  The  natural  order  of 
reading  ought  to  control,  and  that  is  the  name  of  the  party  addressed 
first,  and  then  what  is  written  to  or  concerning  him.  If  the  signature 
of  the  writer  is  appended  to  what  is  written  it  fully  meets  the  re- 
quirements of  the  statute. 

Without  pursuing  the  subject  further  we  are  of  opinion  that  the 
inscription  on  the  envelope  should  be  read  as  the  preface  to  and  in 
connection  with  the  paper  inclosed  therein,  and  that  they  together  con- 
stitute a  valid  testamentary  disposition  of  the  accompanying  note,  op- 
erating as  a  codicil  to  the  will  of  the  testatrix. 

Judgment  reversed,  and  judgment  is  now  entered  in  favor  of  the 
plaintiff  on  the  question  of  law  reserved.^* 


In  re  GOODS  OF  TRURO. 
(Court  of  Probate,  1S66.    L.  R.  1  P.  &  D.  201.) 
See  post,  p.  342,  for  a  report  of  the  case. 

64  See  Goods  of  Almosnino,  1  Sw.  &  Tr.  508  (1859).  But  see  Van  Strau- 
benzee  v.  Mouck,  3  Sw.  &  Tr.  6  (1SG2).  Compare  Pearce  v.  Gardner  [1S97] 
1  Q.  B.  688,  where  the  question  was  whether  a  contract  complied  with  the 
Statute  of  Frauds,  and  the  words  "Dear  Sir"  at  the  head  of  a  letter  were 
held  to  incorporate  for  the  pxirposes  of  the  statute  the  name  on  the-  en- 
velope. 


'^^ 


208  LAST   WILLS   AND   TESTAMENTS.  (Part  1 

W  '  In  re  GOODS  OF  MARY  REID. 

(Court  of  Probate,  1868.    38  L.  J.  (N.  S.)  P.  &  M.  L) 
See  ppst,  p.  346,  for  a  report  of  the  case. 


In  re  GOODS  OF  SMART. 
(High  Court  of  Justice,  Probate  Division.     [1902]  P.  2S8.) 

GoRELL  Barnes,  J.  This  is  a  motion  to  obtain  the  opinion  of  the 
Court  as  to  whether  a  certain  book,  or  hsts  in  it,  is  to  be  incorporated 
with  the  will  and  codicil  of  Miss  Ann  Caroline  Smart.  The  lady 
made  a  will  on  February  28,  1895,  which  contains  a  clause  as  follows : 
"I  give  to  my  said  cousin,  Margaret  Rose  Smart,  all  my  furniture, 
books,  plate,  linen,  wearing  apparel,  and  personal  effects  of  a  like 
nature  during  her  life  for  her  own  absolute  use  and  benefit,  and  from 
and  after  her  decease  I  direct  my  trustees  to  give  to  such  of  my  friends 
as  I  may  designate  in  a  book  or  memorandum  that  will  be  found  with 
this  will  the  different  articles  specified  for  such  friends  in  such  book 
or  memorandum,  and  as  regards  any  of  such  articles  not  specifically  dis- 
posed of  by  me,  I  declare  that  the  said  Margaret  Rose  Smart  shall 
have  full  power  to  absolutely  dispose  thereof."  At  the  time  when 
this  will  was  made,  as  far  as  I  can  make  out  from  the  affidavit  which 
has  been  filed,  there  was  no  such  book  as  that  mentioned  in  the  will, 
or,  if  there  was,  it  is  not  in  existence;  but,  after  the  date  of  that  will, 
there  is  a  book  which  I  understand,  though  it  is  not  deposed  to  on 
affidavit  at  present,  is  in  the  handwriting  of  the  lady,  beginning  "1898. 
Hints  for  Executors;  amended  1899,"  and  on  the  fourth  page,  I  think 
it  is,  of  the  book  there  commences  a  list  with  regard  to  clothing  and 
other"  articles,  and  it  is  with  regard  to  the  articles  mentioned  in  the 
book  that  the  question  really  arises.  After,  at  any  rate,  the  date  at 
which  the  book  appears  to  have  been  written  up,  a  codicil  appears  to 
have  been  made  by  the  lady,  dated  July  27,  1900.  I  do  not  find  that 
any  reference  is  made  to  the  book  in  any  codicil ;  but  the  codicil  be- 
fore me  deals  with  a  considerable  number  of  dispositions,  and  winds 
up  by  stating  that  in  all  other  respects  the  testatrix  confirms  the  said 
will. 

The  question  is,  therefore,  whether  the  book,  so  far  as  it  is  referred 
to,  if  referred  to  at  all,  in  that  clause  which  I  read  from  the  will,  is 
to  be  incorporated  with  the  will  and  codicil.  I  have  already  prac- 
tically intimated  my  view  that  it  ought  not  to  be  incorporated,  and  I 
might  have  contented  myself  with  saying  that  I  come  to  that  conclu- 
sion in  consequence,  principally,  of  a  decision  of  the  President  in  the 
case  of  Durham  v.  Northen  [1895]  P.  66;  but  Mr.  Deane  argued 
that  that  case  was  inconsistent  with  other  authorities,  and  that  the  au- 
thorities were  in  conflict  amongst  themselves;    so  I  desired  to  look 


Ch.  6)  EXECUTION   OF   WRITTEN   WILLS  AND   TESTAMENTS.  209 

through  them  to  see  if  that  contention  could  be  properly  supported. 
Before  referring  very  briefly  to  the  cases,  it  seems  to  me  desirable  to 
state  how  the  principle  upon  which  this  matter  ought  to  be  decided 
appears  to  my  mind.  It  see'ms  to  me  that  it  has  been  established  that 
if  a  testator,  in  a  testamentary  paper  duly  executed,  refers  to  an  ex- 
isting unattested  testamentary  paper,  the  instrument  so  referred  to  be- 
comes part  of  his  will ;  in  other  words,  it  is  incorporated  into  it ;  but 
it  is  clear  that,  in  order  that  the  informal  document  should  be  incor- 
porated in  the  validly  executed  document,  the  latter  must  refer  to 
the  former  as  a  written  instrument  then  existing — that  is,  at  the  time 
of  execution — in  such  terms  that  it  may  be  ascertained. 

A  leading  case  upon  this  subject  is  Allen  v.  Maddock  (1858)  11 
Moo,  P.  C.  437,  and  it  is  desirable  also  to  refer  to  In  the  Goods  of 
Mary  Sunderland  (1866)  L.  R.  1  P.  &  M.  198.  It  will  be  seen  from 
a  statement  of  the  principle  in  the  form  I  have  just  given,  that  the 
document  which  it  is  sought  to  incorporate  must  be  existing  at  the 
time  of  the  execution  of  the  document  into  which  it  is  to  be  incor- 
porated, and  there  must  be  a  reference  in  the  properly  executed  docu 
ment  to  the  informal  document  as  an  existing  one,  and  not  as  a  future 
document.  If  the  document  is  not  existing  at  the  time  of  the  will,  but 
comes  into  existence  afterwards,  and  then,  after  that  again,  there  is  a 
codicil  confirming  the  will,  the  question  arises,  as  it  has  done  in  a 
number  of  these  cases,  whether  that  document  is  incorporated.  It 
appears  to  me  that,  following  out  the  principle  which  I  have  already 
referred  to,  the  will  may  be  treated,  by  the  confirmation  given  by 
the  codicil,  as  executed  again,  and  as  speaking  from  the  date  of  the 
codicil,  and  if  the  informal  document  is  existing  then,  and  is  referred 
to  in  the  will  as  existing,  so  as  to  identify  it,  there  will  be  incorpora- 
tion ;  but  if  the  will,  treated  as  being  re-executed  at  the  date  of  the 
codicil,  still  speaks  in  terms  which  shew  that  it  is  referring  to  a  future 
document,  then  it  appears  to  me  there  is  no- incorporation.  I  might 
put  a  clear  concrete  case.  Suppose  that  the  will  said,  "I  wish  certain 
articles  to  be  disposed  of  by  my  executors  in  accordance  with  a  list 
which  I  shall  hereafter  write,"  and  the  testator  then  wrote  a  list  such 
as  was  contemplated,  and  then,  after  that,  a  codicil  was  made  confirm- 
ing the  will,  one  of  the  conditions  at  the  date  of  the  codicil  which  is 
necessary  for  incorporation  would  be  fulfilled,  namely,  the  execution 
of  a  document ;  but  the  other  condition  would  not  be  fulfilled,  because 
the  will,  even  speaking  from  the  date  of  its  so-called  re-execution  by 
that  confirmation  by  the  codicil,  would  still  in  terms  refer  to  some- 
thing which  even  then  was  future. 

I  have,  perhaps,  stated  a  little  more  fully  than  is  necessary  what 
was  very  clearly  and  shortly  said  by  the  President  (Sir  F.  H.  Jeune) 
in  the  case  to  which  I  have  referred.  [1895]  P.  66.  Now,  referring 
very  briefly  to  the  other  authorities,  the  first  which  Mr.  Deane  cited 
was  the  case  of  In  the  Goods  of  Hunt,  2  Rob.  622,  where  the  learned 
Cost.  Wills— 14 


210  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

judge,  Sir  John  Dodson,  was  dealing  with  two  schedules  which  were 
to  be  annexed  to  the  will,  and  where  the  codicil  had  been  afterwards 
executed,  and  he  allowed  those  documents  to  be  incorporated;  but 
it  is  clear,  from  reading  the  remarks  which  are  reported,  that  no  rea- 
sons whatever  are  given  for  the  judgment,  and  it  does  not  seem  to  me 
that  there  is  anything  to  shew  upon  what  principle  the  learned  judge 
acted,  or  that  he  was  then  considering  the  principles  applicable  to  this 
matter  in  the  way  in  which  they  were  subsequently  and  fully  consid- 
ered in  the  case  of  In  the  Goods  of  Lady  Truro,  L.  R.  1  P.  &  M.  201. 

The  next  case  referred  to  was  In  the  Goods  of  Stewart,  3  Sw.  & 
Tr.  192,  4  Sw.  &  Tr.  211,  where  Sir  Cresswell  Cresswell  said  that  the 
list  which  was  mentioned  in  the  will  hardly  conformed  to  the  refer- 
ence to  it;  but,  acting  upon  In  the  Goods  of  Hunt  [supra],  he  al- 
lowed the  incorporation,  though  with  doubts.  There,  again,  no  rea- 
sons were  given;  but  in  the  case  of  In  the  Goods  of  Mathias,  3  Sw. 
&  Tr.  100,  decided  two  or  three  months  later,  but  reported  earlier 
in  the  same  volume.  Sir  Cresswell  Cresswell  said  no  reasons  were 
given  for  the  decision  in  In  the  Goods  of  Hunt  [supra],  and  he  then 
acted  contrary  to  it. 

Next  comes  the  important  case  of  In  the  Goods  of  Lady  Truro 
[supra],  where  the  subject  was  very  fully  considered,  and  the  prin- 
ciples, so  far  as  I  have  stated  them  in  my  own  way,  are  really  laid 
down.  Those  principles  were  applied  in  In  the  Goods  of  Mary  Sun- 
derland, L.  R.  1  P.  &  M.  198,  and  also  in  In  the  Goods  of  Mary  Reid, 
38  L.  J.  (P.  &  M.)  1;  and  lastly,  they  are  restated  and  acted  upon  by 
the  President  in  the  case  to  which  I  have  referred.  [Durham  v.  Nor- 
then],  [1895]  P.  66. 

Therefore,  to  my  mind,  it  is  clear  that  if  the  terms  of  the  refer- 
ence in  this  case  indicate  a  document  of  a  future  character  there  is 
no  incorporation.  The  words  are:  "I  direct  my  trustees  to  give  to 
such  of  my  friends  as  I  may  designate  in  a  book  or  memorandum 
that  will  be  found  with  this  will."  That  reference,  made  at  the  date 
of  the  will,  was,  I  think,  clearly  made  as  to  a  future  document.  A 
document  next  comes  into  existence,  and  a  codicil  is  afterwards  made ; 
but  if  you  treat  the  will  according  to  the  cases,  as  speaking  at  the  date 
of  the  codicil,  the  reference  is  still  in  terms  to  a  document  which,  even 
then,  is  future,  and  therefore  does  not  comply  with  one  of  the  neces- 
sary conditions,  namely,  that  it  must  refer  to  a  document  as  existing 
at  the  date  when  the  will  is  re-executed. 

For  these  reasons  I  think  there  ought  to  be  no  incorporation  of  the 
book,  or  that  part  of  it  which  it  is  sought  to  incorporate.  I  suppose 
that  is  sufficient  to  dispose  of  this  application?  This  is  clearly  a  case 
in  which  the  executors  ought  to  have  the  costs  of  this  application  out 
of  the  estate. 


Ch.  6)  EXECUTION  OF  WRITTEN   WILLS  AND  TESTAMENTS.  211 


In  re  EMMONS'  WILL. 

(Supreme  Court,  Appellate  Division,  First  Department,  190G.     110  App.  Div. 

701,  96  N.  Y.  Supp.  506.) 


See  post,  p.  349,  for  a  report  of  the  case. 


BRYAN'S  APPEAL. 

(Supreme  Court  of  Errors  of  Connecticut,  1904.     77  Conn.  240.  58  Atl.  748,  68 

L.  R.  A.  353,  107  Am.  St.  Rep.  34.) 

Torrance,  C.  J.  The  court  of  probate  for  the  district  of  New 
Haven  approved  and  admitted  to  probate  a  certain  writing  as  the 
last  will  of  Philo  S.  Bennett,  deceased.  That  will  contained,  as  its 
12th  clause,  the  following :  "I  give  and  bequeath  unto  my  wife,  Grace 
Imogene  Bennett,  the  sum  of  fifty  thousand  dollars  ($50,000),  in  trust, 
however,  for  the  purposes  set  forth  in  a  sealed  letter  which  will  be 
found  with  this  will."  At  the  time  this  will  was  offered  for  probate 
there  were  also  offered  for  probate  as  a  part  of  it,  under  the  12th 
clause  of  the  will,  two  writings  hereinafter  referred  to  as  Exhibits 
B  and  C. 

The  court  of  probate  refused  to  approve  or  admit  to  probate  as  parts 
of  said  will  each  and  both  of  these  exhibits;  and  from  that  part  of  its 
decree  an  appeal  was  taken  to  the  superior  court,  by  William  J.  Bryan 
individually,  and  as  trustee  under  the  will  as  he  claims  it  to  be.  The 
will  admitted  to  probate  is  in  the  record  called  Exhibit  A;  while  Ex- 
hibits B  and  C  are  letters  which,  as  the  appellant  claims,  constitute  a 
part  of  the  will.  The  will  was  executed  in  New  York,  and  is  dated 
the  22d  day  of  May,  1900. 

Exhibit  B  is  a  letter  from  the  testator  to  his  wife,  of  which  the  fol- 
lowing is  a  copy: 

"New  York,  5/22/1900. 

"My  Dear  Wife:  In  my  will  just  executed  I  have  bequeathed  to 
you  seventy-five  thousand  dollars  (75,000)  and  the  Bridgeport  houses, 
and  have  in  addition  to  this  made  you  the  residuary  legatee  of  a  sum 
which  will  amount  to  twenty-five  thousand  more.  This  will  give  you 
a  larger  income  than  you  can  spend  while  you  live,  and  will  enable 
you  to  make  bountiful  provision  for  those  you  desire  to  remember 
in  your  will.    In  my  will  you  will  find  the  following  provisions : 

"I  give  and  bequeath  unto  my  wife,  Grace  Imogene  Bennett,  the 
sum  of  fifty  thousand  dollars  (50,000),  in  trust,  however,  for  the  pur- 
poses set  forth  in  a  sealed  letter  which  will  be  found  with  this  will. 

"It  is  my  desire  that  fifty  thousand  dollars  conveyed  to  you  in  trust 
by  this  provision  shall  be  by  you  paid  to  William  Jennmgs  Bryan, 
of  Lincoln,  Neb.,  or  to  his  heirs  if  I  survive  him.     I  am  earnestly 


212  LAST   WILLS  AND  TESTAMENTS.  (Part  1 

devoted  to  the  political  principles  which  Mr.  Bryan  advocates,  and 
believe  the  welfare  of  tlie  nation  depends  upon  the  triumph  of  those 
principles.  As  I  am  not  as  able  as  he  to  defend  those  principles  with 
tongue  and  pen,  and  as  his  political  work  prevents  the  application 
of  his  time  and  talents  to  money  making,  I  consider  it  a  duty,  as  I 
find  it  a  pleasure,  to  make  this  provision  for  his  financial  aid,  so  that 
he  may  be  more  free  to  devote  himself  to  his  chosen  field  of  labor.  If 
for  any  reason  he  is  unwilling  to  receive  this  sum  for  himself,  it  is 
my  will  that  he  shall  distribute  the  said  sum  of  fifty  thousand  dollars 
according  to  his  judgment  among  educational  and  charitable  institu- 
tions. I  have  sent  a  duplicate  of  this  letter  to  Mr.  Bryan,  and  it  is 
my  desire  that  no  one  excepting  you  and  Mr.  Bryan  himself  shall 
know  of  this  letter  and  bequest.  For  this  reason  I  place  this  letter 
in  a  sealed  envelope,  and  direct  that  it  shall  be  opened  only  by  you, 
and  read  by  you  alone.    With  love  and  kisses,  P.  S.  Bennett." 

Exhibit  C  was  a  typewritten  duplicate  of  Exhibit  B,  except  that 
the  words  "with  love  and  kisses,  P.  S.  Bennett,"  at  the  end  of  Exhibit 
B,  were  not  contained  in  Exhibit  C,  nor  was  Exhibit  C  signed  by  the 
testator. 

Respecting  these  exhibits  the  appellant  in  the  Superior  Court  offered 
evidence  tending  to  prove  the  following  facts :  that  about  a  week  or 
ten  days  before  the  date  of  the  will,  at  the  city  of  Lincoln,  Nebraska, 
the  testator,  and  Mr.  Bryan  and  his  wife,  prepared  a  blank  draft  form 
of  the  will,  which  was  subsequently  filled  out  and  executed,  and  that 
Exhibit  C  was  then  also  prepared  as  a  blank  draft  form  from  which 
Exhibit  B  was  to  be,  and  was  subsequently,  drawn ;  that  Exhibit  B 
was  in  the  handwriting  of  the  testator,  and  was  by  him  placed  in  a 
sealed  envelope  bearing  the  following  indorsement  in  his  handwrit- 
ing: "Mrs.  P.  S.  Bennett.  To  be  read  only  by  Mrs.  Bennett,  and  by 
her  alone,  after  my  death.  P.  S.  Bennett.  [Seal.]";  that  the  testa- 
tor, on  the  day  after  the  date  of  the  will,  placed  said  will  and  said 
envelope  containing  Exhibit  B  in  his  box  in  a  vault  in  the  Wool  Ex- 
change Building  in  New  York  City,  where  they  remained  as  he  put 
them  until  after  his  death,  the  will  being  "separate  from  said  letter 
and  said  sealed  envelope" ;  and  that  Exhibit  C,  from  the  time  it  was 
drawn  up,  remained  in  Bennett's  custody  till  his  death,  and  was  found 
soon  after  that  event  among  his  private  papers,  in  an  envelope  sub- 
scribed in  Bennett's  handwriting  as  follows:  "Copy  of  letter  in  Safe 
Deposit  Company  vault,  Wool  Exchange." 

The  appellant  then  offered  Exhibit  C  in  evidence  as  part  of  the  will, 
claiming  that  it  was  the  original  and  equivalent  of  the  paper  Exhibit 
B,  "and  that  it  was  substantially  the  sealed  letter  referred  to  in  para- 
graph 12  of  the  will."  The  court  excluded  the  evidence.  The  ap- 
pellant thereupon  offered  in  evidence,  as  part  of  the  will,  the  letter 
Exhibit  B,  and  the  court  excluded  it.  The  appellant  also  offered  parol 
■evidence  tending  to  prove  that  Exhibit  B  was  the  instrument  to  which 


Ch.  6)  EXECUTION   OP  WRITTEN   WILLS   AND   TESTAMENTS.  213 

reference  was  made  in  clause  12  of  the  will,  but  the  court  excluded 
such  evidence.  Subsequently  the  jury,  under  the  direction  of  the  court, 
rendered  a  verdict  to  the  effect  that  Exhibits  B  and  C  "are  not  either 
separately  or  together  a  part  of  the  last  will  of  said  Philo  S.  Bennett, 
deceased";    and  judgment  followed  in  accordance  with  the  ve:dict. 

From  the  opinion  of  the  trial  court,  which  is  made  part  of  the  rec- 
ord, the  rulings  of  the  court  seem  to  have  been  based  upon  several  dis- 
tinct grounds,  which  may  be  briefly  indicated:  (1)  Apparently  upon 
the  ground  that  the  doctrine  of  incorporation  by  reference  does  not 
prevail  as  to  wills,  under  our  statute  relating  to  their  making  and  ex- 
ecution; (2)  that  even  if  that  doctrine  prevails  here,  no  paper  in  the 
present  will  is  by  reference  made  a  part  of  it,  according  to  the  rules 
universally  applied  in  jurisdictions  where  the  above  doctrine  prevails; 
and  (3)  that  the  letter,  Exhibit  B,  shows  on  its  face  an  intent  on 
the  part  of  the  testator  that  it  should  not  constitute  a  part  of  his  will. 

As  we  think  the  rulings  of  the  court  below  can  be  vindicated  upon 
the  second  of  the  grounds  above  mentioned,  it  will  be  unnecessary  to 
consider  the  other  two  grounds ;  but  in  thus  resting  our  decision  upon 
the  second  ground  we  do  not  mean  to  intimate  that  it  could  or  could 
not  be  made  to  rest  upon  the  first  or  third. 

Before  considering  the  second  ground  a  word  or  two  regarding  the 
first  ground  may  not  be  out  of  place.  Under  the  rule  prevailing  in 
England,  an  unattested  document  may,  by  reference  in  a  will,  under 
certain  conditions  and  limitations,  become  by  such  reference  incor- 
porated in  the  will  as  a  part  of  it;  and  that  too  whether  the  document 
referred  to  is  or  is  not  a  dispositive  one ;  and  one  of  the  leading  cases 
upon  this  subject  is  that  of  Allen  v.  Maddock,  11  Moore's  P.  C.  C. 
427,  decided  in  1858.  This  is  known  as  the  doctrine  of  incorporation 
by  reference;  and  the  principle  upon  which  it  rests  does  not  differ 
essentially  from  that  which  is  applied  in  incorporating  unsigned  writ- 
ings in  a  signed  instrument  so  as  to  constitute  a  memorandum  in  writ- 
ing under  the  statute  of  frauds.  The  English  rule  appears  to  prevail 
in  many  of  our  sister  States ;  but  the  question  whether  it  prevails  in 
this  State,  and  if  so,  with  what  limitations  and  under  what  conditions,, 
was  left  undetermined  in  Phelps  v.  Robbins,  40  Conn.  250,  and  has 
never  been  passed  upon  since.  In  the  present  case  we  find  it  unneces- 
sary to  decide  those  questions ;  but  for  the  purposes  of  the  argument 
we  shall  assume,  without  deciding,  that  the  doctrine  of  incorporation 
by  reference  in  a  will  prevails  here. 

Two  of  the  conditions,  without  the  existence  of  which  the  English 
rule  will  not  be  applied,  are  concisely,  but  we  think  correctly,  stated  in 
Phelps  V.  Robbins,  supra  (page  272),  as  follows:  "First,  the  paper 
must  be  in  existence  at  the  time  of  the  execution  of  the  will ;  and, 
secondly,  the  description  must  not  be  so  vague  as  to  be  incapable  of 
being  applied  to  any  instrument  in  particular,  but  must  describe  the 
instrument  intended  in  clear  and  definite  terms."    In  a  California  case 


214  LAST   WILLS  AND  TESTAMENTS.  (Part  1 

Upon  this  subject  this  language  is  used:  "But  before  such  an  ex- 
trinsic document  may  be  so  incorporated,  the  description  of  it  in  the 
will  itself  must  be  so  clear,  explicit  and  unambiguous  as  to  leave  its 
identity  free  from  doubt."  Estate  of  Young,  123  Cal.  337,  342,  55 
Pac.  1011. 

In  an  important  and  well  considered  English  case,  decided  in  1902, 
the  court  uses  this  language  upon  this  subject:  "But  it  is  clear  that,  in 
order  that  the  informal  document  should  be  incorporated  in  the  validly 
executed  document,  the  latter  must  refer  to  the  former  as  a  writing 
existing — that  is,  at  the  time  of  the  execution — in  such  terms  that  it 
may  be  ascertained.  ♦  *  *  The  document  which  it  is  sought  to  in- 
corporate must  be  existing  at  the  time  of  the  execution  of  the  docu- 
ment into  which  it  is  to  be  incorporated,  and  there  must  be  a  reference 
in  the  properly  executed  document  to  the  informal  document  as  an 
existing  one,  and  not  as  a  future  document."  In  the  Goods  of  Smart, 
L.  R.  [1902]  P.  D.  238,  240. 

Tested  by  the  rules  as  thus  laid  down  in  the  cases  above  cited,  and 
in  numerous  others  that  might  be  cited,  the  will  in  the  present  case 
fails  to  comply  with  the  required  conditions  under  which  incorporation 
by  reference  can  take  place  in  the  case  of  wills.  In  clause  12  of  the 
will  in  question  here  a  large  sum  of  money  is  given  to  Mrs.  Bennett 
"in  trust,  however,  for  the  purposes  set  forth  in  a  sealed  letter  which 
will  be  found  with  this  will."  There  is  not  in  the  language  quoted, 
nor  anywhere  else  in  the  will,  any  clear,  explicit,  unambiguous  ref- 
erence to  any  specific  document  as  one  existing  and  known  to  the  tes- 
tator at  the  time  his  will  was  executed.  Any  sealed  letter,  or  any  num- 
ber of  them,  setting  forth  the  purposes  of  the  trust,  made  by  any- 
body, at  any  time  after  the  will  was  executed,  and  "found  with  the 
will,"  would  each  fully  and  accurately  answer  the  reference;  and  if 
we  assume  that  the  reference  calls  for  a  letter  from  the  testator,  it 
is  answered  by  such  a  letter  or  letters  made  at  any  time  after  the  will 
was  drawn.  The  reference  is  "so  vague  as  to  be  incapable  of  being 
applied  to  any  instrument  in  particular"  as  a  document  existing  at  the 
time  of  the  execution  of  the  will ;  "the  vice  is  that  no  particular  paper 
is  referred  to."  Phelps  v.  Robbins,  40  Conn.  250,  273.  Such  a  ref- 
erence as  is  made  in  the  present  will  is,  in  fact  as  well  as  in  law,  no 
reference  at  all ;  certainly  it  is  not  such  a  reference  as  the  rules  un- 
der the  doctrine  of  incorporation  by  reference  require  in  the  case  of 
wills. 

A  reference  so  defective  as  the  one  here  in  question  cannot  be  helped 
out  by  what  is  called  parol  evidence;  for  to  allow  such  evidence  to 
be  used  for  such  purpose  would  be  practically  to  nullify  the  wise  pro- 
visions of  the  law  relating  to  the  making  and  execution  of  wills.  We 
know  of  no  case,  and  in  the  able  and  helpful  briefs  filed  in  this  case 
have  been  referred  to  none,  where  a  reference  like  the  one  here  in 
question  has  been  held  to  incorporate  into  the  will  some  extrinsic  doc- 
ument. 


Ch.  6)  EXECUTION   OF  WRITTEN   WILLS  AND   TESTAMENTS.  215 

Assuming  then,  without  deciding,  that  the  doctrine  of  incorporation 
prevails  in  this  state,  as  claimed  by  the  appellant,  we  are  still  of  the 
opinion  that  the  rulings  of  which  he  complains  were  correct.®'* 


In  re  PLU^IEL'S  ESTATE. 

(Supreme  Court  of  California,  1907.    151  Cal.TT,  90  Pac  192,  121  Am.  St.  Rep. 

100.) 

Sloss,  J.  J.  F.  Plumel,  a  resident  of  the  city  and  county  of  San 
Francisco,  died  on  July  11,  1905,  leaving  an  estate  consisting  of  his 
separate  property.  His  sole  heirs  at  law  were  three  sisters,  the  ap- 
pellants here,  and  his  widow,  Annie  Plumel,  the  respondent. 

Two  instruments,  written  respectively  on  the  obverse  and  reverse 
sides  of  a  single  sheet  of  paper,  were  offered  for  probate  as  the  will 
and  codicil  of  the  decedent^  and  both  were  admitted  to  probate.  From 
the  order  admitting  the  alleged  will  to  probate,  the  sisters  prosecute 
this  appeal. 

The  will  was  dated  January  12,  1904.  By  its  terms,  the  residue  of 
the  estate,  after  certain  bequests  to  the  sisters  and  others,  was  given 
to  the  respondent,  who  is  named  as  executrix.  This  instrumeni  was 
not  attested.  It  was  entirely  written,  dated,  and  signed  by  the  hand 
of  the  decedent,  with  the  exception  of  the  figures  "190"  in  the  date 
1904.    The  figures  "190"  were  printed. 

Upon  the  back  of  the  same  sheet  of  paper  the  codicil  was  written. 
It  complied  with  the  requirements  of  the  law  regarding  holographic 
wills,  being  entirely  written,  dated,  and  signed  by  the  hand  of  the 
testator,  and  read  as  follows :  "Codicil.  Jan.  14,  1904.  In  case  of 
railway  or  steamship  disaster  in  which  both  myself  and  wife  should 
be  killed,  I  will  and  bequeath  all  property  real  or  personal  to  my  sis- 
ters resident  in  France,  share  and  share  alike.     J.  F.  Plumel." 

The  will  of  January  12,  1904,  being  unattested  and  being  invalid 
as  a  holographic  will,  because  not  entirely  written,  dated,  and  signed 
by  the  hand  of  the  testator,  was  not,  standing  alone,  entitled  to  be  ad- 
mitted to  probate.  Civ.  Code,  §  1277 ;  Estate  of  Billings,  64^  Cal.  427, 
1  Pac.  701. 

But  the  contention  of  the  respondent  is  that  the  codicil  incorporated 
in  itself  the  terms  of  the  will,  and  that,  on  proof  of  the  due  execution 

6  5  See  Thayer  v.  Wellington,  9  Allen  (Mass.)  283.  85  Am.  Dec.  753  (1864) ; 
Bryan  v.  Bigelow,  77  Conn.  604,  60  Atl.  266.  107  Am.  St.  Eep.  64  (1905). 

It  has  finally  been  decided  that  the  doctrine  of  incorporation  by  refer- 
ence, as  such,  does  not  exist  in  Connecticut.  Hatheway  v.  Smith.  79  Conn. 
506.  65  Atl.  1058,  9  L.  R.  A.  (N.  S.)  310  (1907).  The  same  is  true  of  New  York. 
Booth  V.  Baptist  Church,  126  N.  Y.  215,  28  N.  E.  238  (1891).  Though  with  the 
qualifications  pointed  out  in  In  re  Emmons'  Will,  post,  p.  349.  But,  though 
the  paper  attempted  to  be  incorporated  cannot  be  probated  in  such  a  state, 
it  has  been  held  that  the  duly  executed  part  may  be.  In  re  Reins'  Estate.  59 
Misc.  Rep.  120,  112  N.  Y.  Supp.  203'  (190S) ;    In  re  Emmons'  Will,  post,  p.  349. 


216  LAST  WILLS  AND  TESTAMENTS.  (Part   1 

of  the  codicil,  both  documents  were  properly  admitted  to  probate  as 
the  testamentary  act  of  the  decedent.  This  position  is  not,  as  the  ap- 
pellants assume,  based  on  section  1287  of  the  Civil  Code,  which  pro- 
vides that  "the  execution  of  a  codicil,  referring  to  a  previous  will,  has 
the  effect  to  republish  the  will  as  modified  by  the  codicil."  It  is  not 
necessary  here  to  consider  whether  this  section  has  any  application 
to  the  facts  of  this  case.  Apart  from  its  terms,  it  has  long  been  set- 
tled that  a  will  or  codicil  executed  in  accordance  with  the  requirements 
of  statute  may,  by  an  appropriate  reference,  incorporate  within  itself  a 
document  or  paper  not  so  executed.  30  Am.  &  Eng.  Ency.  of  Law 
(2d  Ed.)  578;  Habergham  v.  Vincent,  2  Ves.  Jr.  204,  228;  Smart 
V.  Prujean,  6  Id.  560;  Allen  v.  Maddock,  11  Moore's  P.  C.  427; 
Brown  v.  Clark,  77  N.  Y.  369. 

In  Estate  of  Willey,  128  Cal.  1,  60  Pac.  471,  this  court  quoted  with 
approval  the  following  language  from  1  Redfield  on  the  Law  of  Wills, 
page  *264:  "The  cases  already  referred  to  show  very  clearly  that  a 
will  required  to  be  witnessed  by  two  or  more  persons,  or  executed 
with  any  other  prescribed  formalities,  may  nevertheless  adopt  an  ex- 
isting paper  by  reference.  *  *  *  This  'incorporation'  of  the  paper 
referred  to  into  the  will  so  makes  it  a  part  of  the  instrument  that  no 
distinct  proof  of  the  paper  is  required,  or  even  filing,  in  the  probate 
court.  The  proof  of  the  will  sets  up  and  establishes  the  paper,  as  a 
portion  of  itself,  by  proof  of  the  reference  to  the  consequent  incor- 
poration." And  the  court  went  on  to  say :  "The  principle  is  also  sub- 
stantially declared  in  the  case  of  In  re  Soher,  78  Cal.  481,  21  Pac.  8. 
Of  course,  the  reference  must  be  certain,  and  to  an  instrument  then 
in  existence." 

It  is  no  doubt  true,  as  is  stated  in  the  Willey  Case,  that  in  order  to 
"make  out  a  case  for  the  application  of  the  doctrine  of  incorporation 
by  reference,  the  paper  referred  to  must  not  only  be  in  existence  at 
the  time  of  the  execution  of  the  attested  or  properly  executed  paper,  but 
that  it  must  be  referred  to  in  the  latter  as  an  existent  paper,  so  as  to 
be  capable  of  identification.  But  we  think  that  in  the  preseiit-Gase- 
there  was  a  sufficient  reference  in  the  codicil  to  identify  the  will  yp- 
on  the  obverse  of  the  same  sheet  of  paper  as  the  instrumenfTeferred 
to.  The  later  paper  is  designated  by  the  testator  as  a  "codicil"  a  term 
which  in  itself  implies  that  it  is  an  addition  to  or  modification  of  some 
existing  testamentary  paper.  "A  codicil  is  some  addition  to  or  qual- 
ification of  a  last  will  and  testament.  A  codicil  is  part  of  a  will  to 
which  it  is  attached  or  referred,  and  both  must  be  taken  and  construed 
together  as  one  instrument."  Proctor  v.  Clarke,  3  Redf.  Sur.  (N.  Y.) 
445,  448.  By  its  very  definition,  the  word  "codicil"  imports  a  ref- 
erence to  some  prior  paper  as  a  will.  And  the  fact  that  the  codicil 
is  written  upon  a  sheet  of  paper  containing  a  writing  which  pur- 
ports to  be  testamentary  in  character  is  sufficient  to  justify  the  infer- 
ence that  such  writing  is  the  will  referred  to  by  the  codicil. 


Ch,  G)  EXECUTION   OF   WRITTEN   WILLS   AND   TESTAMENTS.  217 

In  Jarman  on  Wills,  *153,  it  is  said:  "It  seems  to  have  been  con- 
sidered, in  the  ecclesiastical  courts  at  least,  that  the  fact  of  the  codicil 
being  written  on  the  same  piece  of  paper  as  the  prior  will  (though  it 
does  not  in  terms  refer  to  such  will)  sufficiently  indicates  an  inten- 
tion to  treat  that  as  the  subsisting  will."  In  Hobart  v.  Hobart,  39  N. 
E.  581,  154  111.  610,  45  Am.  St.  Rep.  151,  the  court  said:  "Where  the 
codicil  is  written  on  the  same  paper  as  the  will,  or  clearly  and  unmis- 
takably refers  to  the  will,  so  as  to  preclude  all  doubt  of  its  identity, 
proof  of  the  codicil  establishes  the  will  without  further  proof,  except 
such  portions  thereof  as  are  revoked  or  altered  by  the  codicil."  In 
Goods  of  Heathcote,  6  P.  D.  30,  an  invalid  will  was  offered,  together 
with  a  codicil  upon  the  same  sheet  of  paper,  beginning  with  the  words : 
"This  is  a  codicil  to  the  last  will  and  testament  of  me."  There  was 
no  further  or  other  reference  to  any  will,  and  there  was  no  later  will 
than  the  one  contained  upon  the  same  sheet  of  paper  as  the  codicil. 
It  was  held  that  there  was  a  sufficient  reference  to  allow  the  will  to  be 
probated. 

In  view  of  the  meaning  of  the  word  "codicil,"  the  language  of  the 
testatrix  in  the  case  just  cited  has  no  greater  force  as  a  reference  to  a 
prior  will  than  has  the  single  word  "codicil"  in  the  case  at  bar.  In 
Harvy  v.  Chouteau,  14  Mo.  588,  55  Am.  Dec.  120,  where  the  paper 
incorporated  was  particularly  described  in  the  codicil,  but  not  attached 
to  it,  the  court  said :  "If  the  codicil  had  been  attached  by  a  wafer, 
*  *  *  I  presume  there  would  have  been  no  room  for  doubt.  A  list 
of  decisions  for  more  than  130  years  sustains  this  point.  What  is 
the  difference  between  this  wafer  annexation  of  a  codicil,  which  may 
not  mention  the  previous  will,  otherwise  than  by  reciting  that  'this  is 
my  codicil  to  my  last  will,'  and  the  case  before  us?" 

We  are  referred  to  no  case  holding  that  the  fact  that  a  codicil  is 
physically  attached  to,  or  is  written  upon  a  paper  containing  a  prior 
attempted  testamentary  disposition,  is  not  to  be  considered  as  tending 
to  establish  that  this  prior  writing  is  the  one  referred  to  in  the  codicil. 

It  is  urged  that  the  reference  must  be  certain  so  as  to  enable  the 
identification  of  the  paper  sought  to  be  incorporated  without  the  aid 
of  evidence  outside  of  the  codicil  itself,  and  that  parol  evidence  is  re- 
quired to  show  that  the  will  and  the  codicil  are  written  on  the  same 
sheet  of  paper.  It  is  true  that  there  is  some  language  in  Estate  of 
Young,  123  Cal.  337,  55  Pac.  1011,  which,  taken  literally,  tends  to 
sustain  the  view  that  the  identification  of  the  paper  to  be  incorporated 
must  be  possible  from  the  face  of  the  will  or  codicil  alone.  In  that 
case  the  reference  in  the  will  was  merely  to  "two  deeds"  which  were 
not  described  in  any  way.  Any  two  deeds,  whenever  executed,  would 
have  satisfied  the  reference.  It  was  held,  and  beyond  question  rightly, 
that  parol  evidence  was  not  admissible  to  show  that  the  testatrix  had 
two  particular  deeds  in  mind.  But  it  is  to  be  remembered  that  no 
reference,  however  explicit  on  its  face,  can  identify  a  separate  paper 


218  LAST  WILLS   AND  TESTAMENTS.  (Part  1 

without  the  production  of  evidence  to  show  that  the  particular  paper 
offered  does  correspond  to  the  descriptive  particulars  named  in  the 
will. 

We  think  the  correct  rule  was  stated  by  this  court  in  Re  Shillaber, 
74  Cal.  144,  15  Pac.  453,  5  Am.  St.  Rep.  433,  quoting  from  Allen  v. 
Maddock,  supra:    ''A.ref_erencejn  a  will  may  be  in  sucb-t£rm.s.. as  to 


exclude  oral  testimony,  as  where  it  is  to  papers  not  yet  written,  or_ 
where  the  description  is  so  vague  as  to  be  incapable  of  being^j^pHec 
to  any  instrument  in  particular ;   but  the  authorities  seem  clearly  to 
establish  that,  where  there  is  a  reference  to  any  written  document, 
described  as  then  existing  in  such  terms  that  it  is  capable~ortJemg 
ascertained,  parol  evidence  is  admissible  to  ascertain  it,  and  tHTTmly- 
question  is,  whether  the  evidence  is  sufficient  for  the  purpose."  """"      ■ — 

Similarly,  in  Brown  v.  Clark,  supra,  the  Court  of  Appeals  of  New 
York  said:  "It  is  established  by  a  long  line  of  authorities  that  any 
testamentary  document  in  existence  at  the  execution  of  a  will  may, 
by  reference,  be  incorporated  into  and  become  a  part  of  the  will,  pro- 
vided the  reference  in  the  will  is  distinct  and  clearly  identifies,  or  ren- 
ders capable  of  identification,  by  the  aid  of  extrinsic  proof,  the  docu- 
ment to  which  reference  is  made."  See,  also,  Dickenson  v.  Stidolph, 
11  C.  B.  (N.  S.)  341. 

As  we  have  said,  the  use  of  the  word  "codicil"  imports  a  reference 
to  some  already  existing  document,  regarded-by-tb€-4e&tat<?^-a»  his 
will.  To  identify  that  instrument,  and  to  interpret  the  reference  as 
applying  to  it,  the  surrounding  circumstances  may  be  shown.  We 
think  there  is  nothing  in  the  decision  in  Estate  of  Young  which  con- 
flicts with  the  conclusion  drawn  from  the  authorities  above  cited — i.  e., 
that  the  facts  (1)  that  the  codicil  is  written  upon  the  same  piece  of 
paper  as  a  writing  purporting  to  be  a  will;  and  (2)  that  no  other  will 
is  produced— may  be  considered  as  tending  to  identify  the  purported 
will  as  the  one  referred  to. 

The  order  appealed  from  is  affirmed."' 


In  re  BOYES. 

BOYES  V.  CARRITT. 

(Supreme  Court  of  Judicature,  Chancery  Division,  18S3.    L.  R.  26  Ch.  D.  531.) 

The  will  of  the  testator  in  this  cause,  dated  the  1st  of  June,  1880, 
was  in  these  words :  "This  is  the  last  will  and  testament  of  me,  George 
Edmund  Boyes.     *     *     *    I  direct  the  payment  of  my  just  debts  and 

66  In  Sliarp  v.  "Wallace,  83  Ky.  584  (18S6),  the  court  held  that  a  si^ed 
but  unattested  will,  not  in  the  handwriting  of  the  testator,  could  not  be  in> 
corporated  and  validated  by  an  unattested  holographic  codicil. 


Ch.  6)  EXECUTION  OF  WRITTEN  WILLS  AND   TESTAMENTS.  219 

funeral  and  testamentary  expenses  as  soon  as  conveniently  may  be 
after  my  decease  by  my  executor  hereinafter  named,  and  subject 
thereto  I  give,  devise,  and  bequeath  all  my  real  and  personal  estate 
whatsoever  and  wheresoever  unto  Frederick  Blasson  Carritt  absolute- 
ly. And  I  appoint  the  said  Frederick  Blasson  Carritt  sole  executor 
of  this  my  will." 

The  testator  died  in  April,  1882,  at  Ghent,  leaving  personal  property 
only.  Immediately  after  his  death  probate  was  granted  to  Mr,  Car- 
ritt. Thereupon  the  plaintiff,  John  F.  Boyes,  one  of  the  brothers  and 
next  of  kin  of  the  testator,  instituted  proceedings  in  the  Probate  Di- 
vision of  the  High  Court  to  recall  probate.  Mr.  Carritt,  who  was  the 
defendant  in  that  action,  was  the  solicitor  and  a  private  friend  of  the 
testator,  and  had  himself  prepared  the  will,  and  in  answer  to  inter- 
rogatories administered  to  him  in  the  probate  action,  Mr.  Carritt  stated 
as  follows :  That  the  testator  communicated  his  intentions  to  him  at 
the  time  when  he  made  his  will  (which  was  made  in  London),  and  that 
such  intentions  were  that  the  defendant  should  take  the  property  as 
trustee  upon  trust  to  deal  with  it  according  to  further  directions,  which 
the  testator  was  to  give  by  letter  after  his  arrival  on  the  Continent, 
whither  he  was  then  going  within  a  day  or  two;  and  that  he  (Mr. 
Carritt)  accepted  the  trust.  That  the  deceased  did  go  to  the  Continent 
within  a  day  or  two,  but  never  gave  any  further  directions  in  his  life- 
time. Upon  receiving  this  answer  the  validity  of  the  will  was  admit- 
ted, and  the  action  to  recall  probate  was  discontinued. 

This  action  was  shortly  afterwards  brought  by  the  next  of  kin  of 
the  testator  against  Mr,  Carritt  in  order  to  obtain  a  declaration  that 
they  were  beneficially  entitled  to  his  personal  estate. 

In  his  defense,  Mr.  Carritt  said  that  in  giving  the  instructions  the 
testator  expressed  to  him  verbally  his  desire  to  provide  for  a  certain 
lady  and  child,  whose  names  he  did  not  wish  to  appear  in  his  will, 
and  he  therefore  desired  to  leave  the  whole  of  his  property  to  the  de- 
fendant as  trustee  to  act  with  respect  thereto  according  to  any  further 
written  directions  which  might  be  given  to  him. 

In  his  oral  evidence  in  this  action  the  defendant  confirmed  these 
statements  as  accurately  representing  what  he  believed  at  the  time, 
and  said :  "I  gathered  that  I  was  to  dispose  of  the  estate  as  Mr.  Boyes 
would  direct  me — the  word  'trustee'  was  never  used — the  understand- 
ing was  that  he  was  to  write  to  me,  and  I  was  to  comply  with  his  di- 
rections." 

No  such  directions  were  ever  in  fact  given  by  the  testator  to  Mr, 
Carritt  in  his  lifetime,  but  after  his  death  there  were  found  among 
his  papers  two  letters,  one  dated  the  10th  of  February,  1880  (which 
was  proved  to  be  a  mistake  for  1881),  written  at  Antwerp,  and  which 
was  in  these  words : 

"F.  B.  Carritt,  Esq. :  I  wish  you  to  have  five  and  twenty  pounds 
of  any  property  of  which  I  may  die  possessed  for  the  purchase  of  any 


220  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

trinket  in  memoriam,  everything-  else  I  give  to  Nell  Brown,  formerly 
Sears,  and  I  appoint  you  sole  trustee  to  act  at  your  discretion. 

"G.  E.  Boyes." 

The  other  letter  was  in  these  terms : 

"4th  June,  1881. 

"F.  B.  Carritt,  Esq. — Dear  Sir:  In  case  of  my  death  I  wish  Nell 
Brown  to  have  all  except  twenty-five  pounds  in  my  memory. 

"G.  E.  Boyes." 

Neither  of  these  letters  was  executed  as  a  testamentary  instrument. 

Mrs.  Brown  was  examined  in  this  action,  and  she  stated  that  the 
testator  told  her  that  he  had  written  two  letters  to  Mr.  Carritt,  one  in 
case  the  other  was  lost.  He  directed  her  in  case  of  his  death  to  send 
immediately  for  Mr.  Carritt.  She  did  so,  and  having  found  these 
two  letters  among  his  papers,  she  placed  them  in  Mr.  Carritt's  hands 
shortly  after  the  testator's  death. 

Kay,  J.,  after  stating  the  facts  of  the  case,  continued: 

The  result  of  this  is  that  Mr.  Carritt  admits  that  he  is  a  trustee  of 
all  the  property  given  to  him  by  the  will.  He  desires  to  carry  out  the 
wishes  of  the  testator  as  expressed. in  the  two  letters,  but  of  course  he 
can  only  do  so  if  they  constitute  a  binding  trust  as  against  the  next 
of  kin. 

If  it  had  been  expressed  on  the  face  of  the  will  that  the  defendant 
was  a  trustee,  but  the  trusts  were  not  thereby  declared,  it  is  quite 
clear  that  no  trust  afterwards  declared  by  a  paper  not  executed  as 
a  will  could  be  binding.  Johnson  v.  Ball,  5  De  G.  &  Sm.  85 ;  Briggs 
V.  Penny,  3  Mac.  &  G.  546 ;  Singleton  v.  Tomlinson,  3  App.  Cas.  404. 
In  such  a  case  the  legatee  would  be  trustee  for  the  next  of  kin. 

There  is  another  well-known  class  of  cases  where  no  trust  appears 
on  the  face  of  the  will,  but  the  testator  has  been  induced  to  make  the 
will,  or,  having  made  it,  has  been  induced  not  to  revoke  it  by  a  promise 
on  the  part  of  the  devisee  or  legatee  to  deal  with  the  property,  or  some 
part  of  it  in  a  specified  manner.  In  these  cases  the  court  has  com- 
pelled discovery  and  performance  of  the  promise,  treating  it  as  a  trust 
binding  the  conscience  of  the  donee,  on  the  ground  that  otherwise  a 
fraud  would  be  committed,  because  it  is  to  be  presumed  that  if  it  had 
not  been  for  such  promise  the  testator  would  not  have  made  or  would 
have  revoked  the  gift.  The  principle  of  these  decisions  is  precisely 
the  same  as  in  the  case  of  an  heir  who  has  induced  a  testator  not  to 
make  a  will  devising  the  estate  away  from  him  by  a  promise  that  if  the 
estate  were  allowed  to  descend  he  would  make  a  certain  provision  out 
of  it  for  a  named  person;  Stickland  v.  Aldridge,  9  Ves.  516;  Wall- 
grave  v.  Tebbs,  3  K.  &  J.  313 ;  McCormick  v.  Grogan,  Law  Rep.  4 
H,  L.  82.  But  no  case  has  ever  yet  decided  that  a  testator  can  by  im- 
posing a  trust  upon  his  devisee  or  legatee,  the  objects  of  which  he  does 
not  communicate  to  him,  enable  himself  to  evade  the  Statute  of  Wills 
by  declaring  those  objects  in  an  unattested  paper  found  after  his 
death. 


Ch.  6)  EXECUTION  OF   WRITTEN   WILLS  AND   TESTAMENTS.  22l 

The  essence  of  all  those  decisions  is  that  the  devisee  or  legatee  ac- 
cepts a  particular  trust  which  thereupon  becomes  binding  upon  him, 
and  which  it  would  be  a  fraud  in  him  not  to  carry  into  effect. 

If  the  trust  was  not  declared  when  the  will  was  made,  it  is  essential 
in  order  to  make  it  binding,  that  it  should  be  communicated  to  the 
devisee  or  legatee  in  the  testator's  lifetime  and  that  he  should  accept 
that  particular  trust.  It  may  possibly  be  that  he  would  be  bound  if 
the  trust  had  been  put  in  writing  and  placed  in  his  hands  in  a  sealed 
envelope,  and  he  had  engaged  that  he  would  hold  the  property  given 
to  him  by  the  will  upon  the  trust  so  declared  although  he  did  not  know 
the  actual  terms  of  the  trust:  McCormick  v.  Grogan.  But  the  reason 
is  that  it  must  be  assumed  if  he  had  not  so  accepted  the  will  would  be 
revoked. 

Suppose  the  case  of  an  engagement  to  hold  the  property  not  upon  the 
terms  of  any  paper  communicated  to  the  legatee  or  put  into  his  hands, 
but  of  any  paper  that  might  be  found  after  the  testator's  death.  The 
evidence  in  this  case  does  not  amount  to  that,  but  if  it  did  the  rule  of 
law  would  intervene,  which  prevents  a  testator  from  declaring  trusts 
in  such  a  manner  by  a  paper  which  was  not  executed  as  a  will  or  codi- 
cil. The  legatee  might  be  a  trustee,  but  the  trust  declared  by  such 
an  unattested  paper  would  not  be  good.  For  this  purpose  there  is 
no  difference  whether  the  devisee  or  legatee  is  declared  to  be  a  trustee 
on  the  face  of  the  will,  or  by  an  engagement  with  the  testator  not 
appearing  on  the  will.  The  devisee  or  legatee  cannot  by  accepting  an 
indefinite  trust  enable  the  testator  to  make  an  unattested  codicil. 

I  cannot  help  regretting  that  the  testator's  intention  of  bounty  should 
fail  by  reason  of  an  informality  of  this  kind,  but  in  my  opinion  it 
would  be  a  serious  innovation  upon  the  law  relating  to  testamentary 
instruments  if  this  were  to  be  established  as  a  trust  in  her  favour. 

The  defendant,  however,  having  admitted  that  he  is  only  a  trustee, 
I  must  hold,  on  the  authority  of  Muckleston  v.  Brown,  6  Ves.  52, 
Briggs  V.  Penny,  3  Mac.  &  G.  546,  and  Johnson  v.  Ball,  5  De  G.  &  Sm. 
85,  that  he  is  a  trustee  of  this  property  for  the  next  of  kin  of  the  tes- 
tator. I  can  only  hope  they  will  consider  the  claim  which  this  lady 
has  upon  their  generosity.^'' 

87  No  distinction  on  principle  exists  whether  the  devise  is  on  its  face 
to  the  devisee  absolutely,  or  "in  trust"  but  the  trust  is  not  expressed. 

"The  result  of  the  cases  appears  to  me  to  be  that  a  testator  cannot  by 
his  will  reserve  to  himself  the  right  of  disposing  subsequently  of  prop- 
erty by  an  instrument  not  executed  as  required  by  the  statute,  or  by  parol ; 
but  that  when,  at  the  time  of  making  his  will,  he  has  formed  the  intention 
that  a  legacy  thereby  given  shall  be  disposed  of  by  the  legatee  in  a  particu- 
lar manner,  not  thereby  disclosed,  but  communicated  to  the  legatee  and  as- 
sented to  by  him,  at  or  before  the  making  of  the  will,  or  probably,  according 
to  }.Ioss  V.  Cooper.  1  .J.  «&  H.  253.  subsequently  to  the  making  of  it,  the  court 
will  allow  such  trust  to  be  proved  by  the  admission  of  the  legatee,  or  other 
parol  evidence,  and  will,  if  it  be  legal,  give  effect  to  it     The  same  prin- 


222  LAST   WILLS  AND   TESTAMENTS.  (Part  1 

In  re  MOORE. 
(Prerogative  Court  of  New  Jersey,  1900.    61  N.  J.  Eq.  616,  47  Atl.  731.) 

Reed,  Vice  Ordinary.  James  Moore  died  August  14,  1897,  leaving 
a  will,  which  was  probated  August  27,  1897,  and  letters  testamentary 
issued  to  James  H.  Moore,  his  son  and  surviving  executor. 

The  will  contained  the  following  clause : 

"In  making  division  of  my  property  aforesaid  as  above  directed  I 
hereby  further  direct  that  certain  amounts  of  money  that  I  have  al- 
ready advanced  or  may  hereafter  advance  to  certain  of  my  children, 
shall  in  each  case  be  charged  against  the  portion  of  each  of  said  chil- 
dren, and  be  inventoried  as  part  of  the  estate  of  which  I  may  die  seized, 

ciple  which  led  this  court,  whether  wisely  or  not,  to  hold  that  the  Statute 
of  Frauds  and  the  Statute  of  Wills  were  not  to  be  used  as  instruments  of 
fraud,  appears  to  me  to  apply  to  cases  where  the  will  shows  that  some  trust 
was  intended,  as  well  as  to  those  where  this  does  not  appear  upon  it.  The 
testator,  at  least  when  his  pui'pose  is  communicated  to  and  accepted  by 
the  proposed  legatee,  makes  the  disposition  to  him  on  the  faith  of  his  car- 
rying out  his  promise,  and  it  would  be  a  fraud  in  him  to  refuse  to  perform 
that  promise.  No  doubt  the  fraud  would  be  of  a  different  kind  if  he  could 
by  means  of  it  retain  the  benefit  of  the  legacy  for  himself;  but  it  appears 
that  it  would  also  be  a  fraud,  though  the  result  would  be  to  defeat  the  ex- 
pressed intention  for  the  benefit  of  the  heir,  next  of  kin,  or  residuary  dev-. 
isees."  Vice  Chancellor  Chatterton,  in  Riordan  v.  Banon,  Irish  Rep.  10 
Eq.  469,  477,  478  (1876).  See,  also,  Curdy  v.  Berton,  79  Cal.  420,  21  Pac. 
858,  5  L.  R.  A.  189,  12  Am.  St.  Rep.  157  (1889) ;  Cagney  v.  O'Brien,  83  111. 
72  (1876).  But  see  Olliffe  v.  Wells,  130  Mass.  221  (1881) ;  Sims  v.  Sims,  94 
Va.  580,  27  S.  E.  436,  04  ^Vm.  St.  Rep.  772  (1897) ;  Heidenheimer  v.  Bauman, 
84  Tex.  174,  19  S.  W.  382,  31  Am.  St.  Rep.  29  (1892),  holding  that  where  the 
devise  is  "in  trust,"  but  the  trust  is  not  expressed  in  the  will,  the  devisee, 
though  the  testator  communicates  the  trust  to  him,  holds  for  the  heirs  or  next 
of  kin,  and  not  for  the  intended  cestui. 

In  Bryan  v.  Bigelow,  77  Conn.  604,  60  Atl.  266,  107  Am.  St.  Rep.  64  (190.5), 
the  court,  having  refused  in  Bryan's  Appeal,  supra,  p.  211,  to  regard  thfe 
letter  as  incorporated  in  the  will,  refused  to  treat  it  as  creating  a  trust. 
The  court  said:  "To  treat  this  letter  as  an  operative  declaration  of  trust 
would  be,  in  effect,  to  hold  that  a  testamentary  disposition  of  property 
could  be  made  by  an  instrument  not  executed  in  conformity  with  the  statute 
regulating  such  transfers  of  property."  77  Conn.  612,  61.3,  60  Atl.  269,  107 
Am.  St.  Rep.  64  (1904).  That  neither  Mrs.  Bennett  nor  the  other  residuary 
legatees  were  ti'ustees  ex  maleficio  was  also  held,  because  "neither  the  evi- 
dence excluded  nor  the  facts  proved  show  any  agreement,  express  or  im- 
plied, by  Mrs.  Bennett,  or  the  other  residuary  legatees,  to  accept  the  money 
npon  the  trust  described  iu  Exhibit  1,  or  that  during  the  lifetime  of  the  tes- 
tator they  even  knew  of  any  of  the  provisions  of  the  twelfth  clause  of  the 
will."     77  Conn.  016,  60  Atl.  270,  107  Am.  St.  Rep.  64  (1904). 

"In  re  Stead  [1900]  1  Ch.  237,  is  an  interesting  case:  A  gift  to  A.  and  B. 
jointly.  A.  is  told,  but  B.  is  not  told,  of  the  trust.  A.  is  bound  as  to  an 
undivided  moiety.  Is  B.  bound?  Yes,  if  the  trust  was  told  to  A.  before 
the  making  of  the  will ;  no,  if  it  was  only  told  to  A.  afterwards.  This  dis- 
tinction rests  on  no  sound  reason,  as,  indeed,  Farwell,  J.,  points  out.  You 
must  accept  it  as  the  result  of  two  lines  of  cases — the  one  set  asserting  a 
rule  that  no  person  can  claim  an  interest  under  a  fraud  committed  by  an- 
other, whilst  the  other  set  was  decided  in  the  opposite  way,  lest  otherwise 
one  beneficiaiT  might  be  enabled  to  deprive  the  rest  of  their  benefits  by  set- 
ting up  some  secret  trust  communicated  to  himself  alone."  Maitland's  Equity 
and  the  Forms  of  Action  at  Common  Law,  61,  62. 


Ch.  6)  EXECUTION   OF  WRITTEN   WILLS  AND  TESTAMENTS.  223 

at  the  full  amount  of  the  charge  in  each  instance,  but  without  interest 
thereon.  All  such  charges  are  contained  in  sealed  envelopes  to  be 
found  with  this  my  last  will.  All  other  evidence  of  indebtedness 
against  any  of  my  said  children,  which  I  may  have  at  my  death,  I 
hereby  give  and  bequeath  to  such  debtors,  respectively,  to  each  child 
the  evidence  of  his  or  her  indebtedness,  and  discharge  each  of  said 
debtors  from  all  his  or  her  obligations  in  respect  to  such  and  all  in- 
debtedness for  any  such  advances  or  debts,  except  such  as  I  have  here- 
tofore specified  as  being  left  with  this  my  will. 

"These  amounts  I  cannot  at  present  certainly  indicate,  as  they  are 
liable  to  be  changed  before  my  death  by  payments  to  be  made  or  by 
further  advances  by  me." 

After  the  testator's  death  the  executors  found  the  will  in  a  sealed 
envelope,  and  with  it  three  other  papers,  signed  by  the  testator,  one  of 
which  was  in  the  following  form : 

"Elizabeth,  N.  J.,  February  22,  1893. 

"The  sum  of  $14,000  is  to  be  charged  to  account  of  my  son  Thomas 
(without  interest)  for  money  heretofore  advanced  by  me  to  him  in 
accordance  with  the  provisions  of  my  will  contained  in  the  third  sec- 
tion thereof.  James  Moore." 

The  point  taken  by  Thomas  Moore,  the  exceptant,  is  that  "this  paper 
is  an  attempt  to  add  to,  change  or  complete  the  provisions  of  a  will 
by  a  subsequent  paper  not  executed  with  the  formalities  required  by 
the  statute  of  wills." 

There  is  no  doubt  that  a  testator  can  provide  that  the  amount  to  be 
received  by  a  legatee  shall  be  dependent  upon  a  condition  of  fact  to  be 
ascertained  aliunde.  Some  of  these  conditions  are  noted  by  Chief 
Justice  Denio,  in  his  opinion  in  the  leading  case  of  Langdon  v.  Astor's 
Executors,  16  N.  Y.  9,  26. 

This  is  so,  even  though  the  condition  may  be  brought  about  by  the 
testator  himself.    Stubbs  v.  Sargon,  3  Myl.  &  C.  507. 

The  testator  could  have  provided  that  all  advances  made  to,  or  debts 
owing  by,  a  legatee,  whether  made  or  incurred  before  or  after  the  exe- 
cution of  the  will,  should  be  deducted  from  his  portion.  Such  amount 
may  be  ascertained  by  parol  evidence,  and  may  be  varied  by  advance- 
ments made  subsequent  to  the  execution  of  the  will.  1  Underh.  Wills. 
447. 

A  frequent  testamentary  provision  is  that  such  debts  or  advance- 
ments as  are  charged  on  testator's  books  against  legatees  shall  be  de- 
ducted, and  these  provisions  are  valid.  Robert  v.  Corning,  89  N.  Y. 
227. 

When  a  testator  provides  that  such  advancements  as  are  indicated 
by  entries,  to  be  subsequently  made  by  him,  shall  be  deducted  from 
the  share  or  legacy,  a  mere  entry,  it  seems,  unless  there  have  been  ad- 
vancements in  fact,  will  not  suffice.    Hoak  v.  Hoak,  5  Watts  (Pa.)  80. 

Parol  evidence  is  admissible  to  support  the  book  entries.  Estate 
of  Mussleman,  5  Watts  (Pa.)  9:   Oilman  v.  Oilman,  63  N.  Y.  41. 


224  LAST   WILLS  AND   TESTAMENTS.  (Part  1 

In  the  present  case  I  think  it  appears  that,  before  the  execution  of 
the  will,  testator  had  paid  to,  and  for  the  benefit  of,  the  exceptant 
moneys,  which  were  never  repaid,  to  an  amount  in  excess  of  $14,000. 
It  is  to  this  sum  that  the  testator  alludes  when  he  speaks  of  the  amounts 
of  money  "that  I  have  already  advanced."  The  checks  produced, 
taken  in  connection  with  the  explanation  of  the  exceptant  himself, 
seem  to  establish  this  fact.*^ 

It  is  true,  the  exceptant  says,  after  admitting  advances  to  the 
amount  of  $15,000,  that  he  is  equitably  entitled  to  a  deduction,  be- 
cause his  father  promised  to  make  up  to  him  certain  commissions  for 
the  sale  of  the  Staten  Island  Railroad,  if  his  son  would  abandon  his 
suit  for  the  same.  He  does  not  say  that  his  father  promised  to  make  it 
up  to  him  in  any  particular  manner.  It  does  not  appear  whether  it 
was  to  be  made  up  to  him  by  relieving  the  son  from  the  amount  which 
he  (the  father)  had  loaned  to  the  firm  of  Mason,  Peas  &Moore  and 
the  firm  of  Peas  &  Moore,  for  which  sum  his  son,  as  a  member  of  the 
bankrupt  firm,  was  responsible,  or  whether  he  was  to  make  it  up  to 
him  in  some  other  unexplained  manner.  So  I  am  of  the  opinion  that 
the  testator  had  the  right  to  regard  the  $15,000  in  money,  which  the 
exceptant  admittedly  received,  as  money  advanced. 

Now,  the  testator  having  the  right  to  provide  that  such  advances 
should  be  charged  to  the  portion  of  exceptant,  the  question  remains, 
did  he  defeat  his  intention  to  charge  some  of  the  advances  by  provid- 
ing that  the  amount  which  he  intended  to  charge  should  be  evidenced 
by  a  paper  made  subsequently  to  the  execution  of  his  will  ? 

In  my  judgment  the  paper  which  contained  the  charge  is  not  to  be 
regarded  as  testamentary  in  its  character.  The  effect  of  the  contents 
of  the  paper  was  restrictive.  Suppose  the  testator  had  said,  I  charge 
all  the  debts  owing  to  me,  which  I  have  not  discharged  or  forgiven  at 

«»  "Proponent  offered  In  evidence  certain  account  books  kept  by  the  de- 
ceased, .showing  adviiucements  made  to  iiis  children,  the  contestants,  from 
time  to  time.  The  entries  shoeing  these  advancements  were  proven  to  have 
been  in  the  handwriting  of  the  deceased,  and  the  booljs  were  fully  Identified. 
Objections  to  these  entries  were  sustained.  While  it  is.  no  doul)t,  true 
that  these  books  of  account  were  inadmissible,  under  our  statutes  relating 
to  the  admission  of  books  of  account,  yet  the  entries  therein  made  were 
written  dcflarations  of  the  deceased  with  reference  to  the  disposition  of 
Bome  of  his  property  before  executing  the  will,  and  as  such  they  were  ad- 
missible. This  Is  especially  true  in  this  case,  for  the  other  evidence  tends 
very  strongly  to  show  that  the  reason  why  he  did  not  remember  his  chil- 
dren was  due  to  the  fact  that  he  had  already  made  provisions  for  them. 
Bever  v.  Spangler,  93  Iowa,  57t),  61  N.  W.  1072,  and  cases  cited.  These 
written  declarations  of  the  deceased  to  the  effect  that  he  had  made  certain 
advancements  to  his  children  should  have  been  admitted  In  evidence  for 
the  pnrixise  of  showing  the  state  of  his  mind  at  the  time  he  executed  the 
will.  True,  they  may  not  prove  that  the  advancements  were  In  fact  made, 
but  the  evidence  was  quite  material  in  considering  the  condition  of  the  de- 
ceased's mind,  and  the  feelings  which  pronijitod  him,  at  tlie  time  he  made  his 
will."  Deemer,  J.,  In  In  re  Perkins'  Estate,  109  Iowa,  218,  80  N.  W.  336 
(1809). 


Ch.  6)  EXECUTION   OF   WRITTEN   WILLS   AND   TESTAMENTS.  225 

the  time  of  my  death,  and  the  receipt,  release  or  paper  evidencing  such 
discharge  will  be  found  with  my  will.  This  would  seem  analogous  to 
a  provision  containing  a  gift  of  certain  property,  unless  it  should  be 
conveyed  before  the  testator's  death.  The  fact  that  he  mentioned 
where  such  deed  or  conveyance  could  be  found,  if  made,  would  be 
in  no  degree  material.  It  being  proved  that  more  than  $14,000  had 
been  advanced  to  this  legatee,  the  paper  which  expressly  charged  him 
with  only  $14,000  was  impliedly  a  gift  of  the  remainder  of  the  ad- 
vances. 

I  think  that  the  decree  of  the  orphans'  court  should  be  affirmed.®^ 

«9  See  In  re  Harris'  Estate,  82  Vt.  199,  72  Atl.  912  (1909) ;  In  re  Bresler's 
Estate,  155  Mich.  567,  119  N,  W.  1104  (1909) ;  Holmes  v.  Coates,  159  Mass. 
226,  34  N.  E.  190  (1893). 

In  Stubbs  V.  Sargon,  3  Myl.  &  C.  507  (1838),  a  trust  to  dispose  of  certain 
property  and  divide  the  proceeds  amongst  those  of  testatrix's  partners  who 
should  be  in  partnership  with  her  at  the  time  of  her  death  or  to  whom  she 
might  have  disposed  of  her  business  was  upheld.  In  so  deciding  Lord 
Chancellor  Cottenhara  said : 

"In  the  present  case,  the  disposition  is  complete.  The  devisee,  indeed,  is 
to  be  ascertained  by  a  description  contained  in  the  will ;  hut  such  is  the 
case  with  many  unquestionable  devises.  A  devise  to  a  second  or  third  son, 
perhaps  unborn  at  the  time,  many  contingent  devises,  all  shifting  clauses,  are 
instances  of  devises  to  devisees  who  are  to  be  ascertained  by  future  events 
and  contingencies :  but  such  persons  may  be  ascertained,  not  only  by  future 
natural  events  and  contingencies,  but  by  acts  of  third  persons.  Suppose  a 
father,  having  two  sons,  and  having  a  relation  who  has  a  power  of  ap- 
pointing an  estate  to  some  one  of  them,  makes  his  will,  and  gives  his  own  es- 
tate to  such  one  of  his  sons  as  shall  not  he  the  appointee  of  the  other  es- 
tate, or  with  a  shifting  clause.  Here  the  act  of  the  donee  of  the  power  is 
to  decide  who  shall  take  the  father's  estate ;  but  there  is  nothing  in  the 
Statute  of  Frauds  to  prevent  this,  because  the  devise  by  the  will  is  com- 
plete; that  is,  the  disposition  is  complete.  The  intention  is  fully  declared, 
though  the  object  to  take  remains  uncertain.  If  the  subsequent  act  remov- 
ing that  uncertainty,  and  fixing  the  identity  of  the  devisee,  were  to  be  con- 
sidered as  testamentary,  in  the  case  above  supposed,  the  donee  of  the  power 
would  be  making  or  completing  the  will  of  the  father;  that  is,  one  man 
would  be  making  another  man's  will.  The  act,  therefore.  Is  not  testa- 
mentary; and,  if  not,  then  why  should  not  the  act  be  the  act  of  the  testa- 
tor himself?  It  is  objected  to  upon  the  ground  of  its  being  testamentary ; 
but,  if  it  be  not  testamentary  when  done  by  a  stranger,  it  cannot  be  so  when 
done  by  the  testator.  If  it  were  otherwise,  a  testator  could  not  devisee  lands, 
or  give  legacies  charged  upon  land,  to  such  person  as  might  be  his  wife  at 
his  death,  to  such  children  as  he  might  have,  or  to  such  servant  as  he  might 
have  in  his  service  at  his  death.  The  cases  of  charging  legacies  generally  by 
a  will,  and  naming  legatees  by  an  unattested  instrument,  carry  this  principle 
to  the  greatest  length,  because  the  subsequent  act  ascertaining  the  ]»arty  to 
take  is  also  testamentary ;  but  that  rule  is  recognized  by  Lord  Rosslyn  in 
Habergham  v.  Vincent,  and  Sir  W.  Grant,  in  Rose  v.  Cunynghame,  12  Ves. 
29  (see  page  38),  explains  it  upon  the  principle  I  have  adverted  to.  He  says 
the  will  creates  the  charge;  it  is  only  necessary  to  show  that  there  is  a  leg- 
acy ;  for  the  moment  that  character  is  shown  to  belong  to  the  demand,  you 
show  that  it  is  already  charged  upon  the  land ;  and  his  decision  in  that 
case  marked  the  distinction,  for  the  testator  did  not  charge  his  legacies  by 
his  will,  and  name  the  legatee  by  a  codicil ;  but  he  devised  his  estate  to  pay 
such  legacies  as  he  should  bequeath  to  be  paid  out  of  his  estate ;  and  aft- 
erwards, by  an  unattested  codicil,  attempted  to  charge  a  legacy  upon  the 
estate ;  which  Sir  W.  Grant  held  he  could  not  do.  because,  not  only  is  the 
legatee  to  be  found  in  the  codicil,  but  the  will  to  make  the  charge — that  d*-* 

Cost.  Wills— 15 


226  LAST   WILLS   AND   TESTAMENTS.  (Part   1 

HARTWELL  et  al.  v.  MARTIN  et  al. 
(Court  of  Chancery  of  New  Jersey,  1906.     71  N.  J.  Eq.  157,  63  Atl.  754.) 

Bergen,  V.  CJ°  The  complainants,  as  executors  of  the  last  will  of 
Alfred  W.  Martin,  seek  directions  to  aid  them  in  the  administration 
of  the  trusts  in  their  hands  under  the  will  of  their  testator.  Of  the 
numerous  questions  presented  in  the  bill  of  complaint,  only  four  were 
pressed  on  the  argument. 

The  first  arises  under  the  second  item  of  the  will,  which  reads  as 
follows :  "I  wish  my  executors  to  make  a  settlement  with  my  credit- 
ors of  what  debts  I  have  outstanding  at  the  time  I  made  an  assign- 
ment, I  think  in  1872,  although  not  under  obligation  to  pay  these  claims 
yet  I  wish  them  paid.  My  executors  must  make  a  settlement  of  the 
principal  without  interest,  and  I  also  wish  those  who  have  received 
their  dividend  to  be  paid  less  the  dividend  they  received  as  well  as 
those  creditors  who  did  not  hand  in  their  claims.  A  list  of  all  debts 
that  I  wish  paid  will  be  found  enclosed  with  this  will." 

The  direction  is  to  pay  all  his  debts  outstanding  in  1872,  without 
naming  the  persons  to  whom  payment  is  to  be  made,  and  to  ascertain 
who  are  embraced  in  that  class  he  refers  his  representatives  to  "a  list 
of  all  debts  I  wish  paid,"  to  be  found  inclosed  with  his  will.  The  will 
was  executed  in  duplicate.  One  of  them  he  gave  to  his  executor  to- 
gether with  a  list  containing  not  only  the  names  of  some  of  his  credit- 
ors in  1872,  who  had  presented  their  claims  to  his  assignee,  and  of 
those  who  had  not,  but  also  a  list  of  creditors  to  whom  he  was  liable 
for  subsequent  debts.  The  names  of  the  creditors  and  the  amounts 
due  are  each  set  out  with  particularity.  The  other  will  the  testator 
retained,  and  it  was  found  in  a  box  where  he  kept  his  valuable  papers 
and  with  it  a  partial  list  of  his  creditors  at  the  date  of  the  assignment, 
and  the  amounts  due  each.  This  list  does  not  correspond,  as  to 
amounts,  with  the  list  held  by  his  executor,  for  in  some  cases  they  are 
reduced,  as  appears  from  an  inspection  of  the  paper,  to  the  extent  of 

being  to  be  found  In  the  will.  I  think,  therefore,  the  objection  upon  the 
ground  of  the  Statute  of  Frauds  cannot  be  supported."     Id.  511,  512. 

In  Dennis  v.  Holsapple,  148  Ind.  297,  47  N.  E.  631,  46  L.  R.  A.  168,  62  Am. 
St.  Rep.  526  (1897),  the  will  provided  that  "whoever  should  take  care  of  me 
and  maintain,  nurse,  clothe  and  furnish  me  with  proper  medical  treatment 
at  my  request,  during  the  time  of  my  life  yet  when  I  shall  i^eed  the  same, 
shall  have  all  of  my  property  of  every  name,  kind  and  description  left  at  my 
death."  In  awarding  the  property  to  the  person  who  met  the  requirement, 
the  court  said  (148  Ind.  297,  at  page  304.  47  N.  E.  631,  at  page  633  [62  Am. 
St.  Rep.  526]):  "This  person,  it  is  true,  depended  upon  the  future  volition  of 
the  testatrix  in  being  chosen  to  perform  the  exacted  services  and  upon  the 
consent  of  the  latter  in  accepting  the  request  and  in  discharging  the  obliga- 
tion imposed  by  the  will ;  but  the  subsequent  volition  exercised  by  Mrs.  ShuU 
[the  testati'ix]  in  this  respect  cannot  be  deemed  or  considered  in  a  legal  sense 
as  testamentary  in  its  nature  or  character." 

7opart  only  of  the  opinion  is  given. 


Ch.  6)  EXECUTION   OP  WRITTEN   WILLS  AND   TESTAMENTS.  227 

payments  made  by  the  testator  after  the  execution  of  his  will.  It 
was  shown  on  the  trial  that  neither  list  contained  the  names  of  all  the 
creditors  mentioned  in  the  schedule  attached  to  the  deed  of  assignment, 
nor  of  all  the  creditors  who  had  proved  and  filed  their  claims. 

Under  this  state  of  facts,  such  of  the  creditors  as  were  omitted  by 
the  testator  from  the  list  he  made  out  claim  that,  under  the  terms  of 
the  will,  they  are  to  be  considered  in  the  class  to  be  paid,  and  that  the 
general  direction  to  pay  is  not  to  be  modified  by  the  list  left  by  the 
testator,  according  to  which  he  expressed  his  intention  that  payments 
should  be  made.  He  was  under  no  legal  obligation  to  pay  these  debts, 
for  they  were  all  either  extinguished  by  the  assignment  proceedings, 
or  subject  to  the  statute  of  limitations,  and  I  am  of  opinion  that  if  the 
bequest  is  good  it  must  be  limited  to  the  debts  contained  in  the  list 
left  by  the  testator  with  the  will. 

It  is  insisted,  however,  by  the  other  legatees  that  the  whole  bequest 
is  void,  because  the  persons  who  were  to  take  are  not  named  individu- 
ally, but  as  a  class,  and  in  order  to  ascertain  who  constitute  the  class, 
reference  must  be  made  to  a  paper  not  executed  according  to  the  law 
of  wills.  It  is  clear  that  this  case  differs  from  one  where  legacies  are 
given  subject  to  deductions  for  advancements  to  be  ascertained  from 
charges  in  a  book  of  account,  or  other  evidence  thereof  to  which  the 
testator  may  refer,  for  in  such  case  the  testamentary  disposition  is 
complete  and  needs  no  aid  from  other  sources  although  subject  to 
debts  or  advancements,  for  they  may  be  proved  without  reference  to 
any  memoranda.  The  gift  is  complete,  its  payment  during  the  life  of 
the  testator  in  whole  or  in  part  may  be  shown  in  exoneration  of  it,  and 
therefore,  in  determining  the  question  under  consideration,  we  are 
afforded  no  assistance  by  Moore's  Case,  61  N.  J.  Eq.  616,  47  Atl.  731, 
for  there  the  disposition  was  testamentary,  subject  to  advancements 
which  the  testator  restricted  to  the  amount  he  considered  he  had  ad- 
vanced. 

My  conclusion  on  this  branch  of  the  case  is  that  the  bequest  to  the 
creditors  of  the  testator  now  under  consideration  is  void,  because  it 
is  an  attempt  to  bequeath  property  to  a  class  of  persons  who  can  only 
be  ascertained  by  reference  to  a  nontestamentary  paper  which  the  tes- 
tator might  change  from  day  to  day,  and  thus  enlarge  or  diminish  his 
testamentary  gifts  as  often  as  he  chose  without  observing  the  rules 
of  law  relating  to  the  testamentary  disposition  of  property.  The  ef- 
fect, if  it  should  be  permitted,  would  be  to  allow  a  testator  to  declare 
the  particular  legatees  to  whom  his  estate  should  go  without  the 
formality  required  by  law  in  such  cases.     *     *     * 


228  LAST   WILLS  AND   TESTAMENTS.  (Part   1 

CHAPTER  VII 
THE  REVOCATION  OF  WILLS 


SECTION  1.— STATUTES 


THE  STATUTE  OF  FRAUDS. 

VI.  And,  moreover,  no  devise  in  writing  of  lands,  tenements  or 
hereditaments,  nor  any  clause  thereof,  shall  at  any  time  after  the  said 
four  and  twentieth  day  of  June  be  revocable,  otherwise  than  by  some 
other  will  or  codicil  in  writing,  or  other  writing  declaring  the  same,  or 
by  burning,  cancelling,  tearing,  or  obliterating  the  same  by  the  testator 
himself,  or  in  his  presence  and  by  his  directions  and  consent;  (2) 
but  all  devises  and  bequests  of  lands  and  tenements  shall  remain  and 
continue  in  force,  until  the  same  be  burned,  cancelled,  torn  or  obliter- 
ated by  the  testator,  or  his  directions,  in  manner  aforesaid,  or  unless 
the  same  be  altered  by  some  other  will  or  codicil  in  writing,  or  other 
writing  of  the  devisor,  signed  in  the  presence  of  three  or  four  wit- 
nesses declaring  the  same;  any  former  law  or  usage  to  the  contrary 
notwithstanding. 

XXII.  And  be  it  further  enacted  that  no  will  in  writing  concerning 
any  goods  or  chattels,  or  personal  estate,  shall  be  repealed,  nor  shall 
any  clause,  devise  or  bequest  therein,  be  altered  or  changed  by  any 
words,  or  will  by  word  of  mouth  only,  except  the  same  be  in  the  life 
of  the  testator  committed  to  writing,  and  after  the  writing  thereof  read 
unto  the  testator,  and  allowed  by  him;  and  proved  to  be  so  done  by 
three  witnesses  at  the  least. 

29  Car.  II,  c.  3,  §§  VI,  XXH  (1677). 


THE  WILLS  ACT. 

XVIII.  And  be  it  further  enacted,  that  every  will  made  by  a  man  or 
woman  shall  be  revoked  by  his  or  her  marriage  (except  a  will  made  in 
exercise  of  a  power  of  appointment,  when  the  real  or  personal  estate 
thereby  appointed  would  not  in  default  of  such  appointment  pass  to 
his  or  her  heir,  customary  heir,  executor,  or  administrator,  or  the  per- 

1  On  the  revocation  of  wills,  see  28  Am.  St  Rep.  344,  note;  7  U  R.  A.  561, 
note. 


Ch.   7)  THE   REVOCATION   OF   WILLS.  229 

son  entitled  as  his  or  her  next  of  kin,  under  the  Statute  of  Distribu- 
tion). 

XIX.  And  be  it  further  enacted,  that  no  will  shall  be  revoked  b^> 
any  presumption  of  an  intention  on  the  ground  of  an  alteration  in  cir- 
cumstances. 

XX.  And  be  it  further  enacted,  that  no  will  or  codicil,  or  any  part 
thereof,  shall  be  revoked  otherwise  than  as  aforesaid,  or  by  another 
will  or  codicil  executed  in  manner  hereinbefore  required,  or  by  some 
writing  declaring  an  intention  to  revoke  the  same,  and  executed  in  the 
manner  in  which  a  will  is  hereinbefore  required  to  be  executed,  or  by 
the  burning,  tearing,  or  otherwise  destroying  the  same  by  the  testator, 
or  by  some  person  in  his  presence  and  by  his  direction,  with  the  inten- 
tion of  revoking  the  same. 

XXI.  And  be  it  further  enacted,  that  no  obliteration,  interlineation, 
or  other  alteration  made  in  any  will  after  the  execution  thereof  shall 
be  valid  or  have  any  effect,  except  so  far  as  the  words  or  effect  of  the 
will  before  such  alteration  shall  not  be  apparent,  unless  such  altera- 
tion shall  be  executed  in  like  manner  as  hereinbefore  is  required  for 
the  execution  of  the  will ;  but  the  will,  with  such  alteration  as  part 
thereof,  shall  be  deemed  to  be  duly  executed  if  the  signature  of  the 
testator  and  the  subscription  of  the  witnesses  be  made  in  the  margin 
or  on  some  other  part  of  the  will  opposite  or  near  to  such  alteration, 
or  at  the  foot  or  end  of  or  opposite  to  a  memorandum  referring  to 
such  alteration,  and  written  at  the  end  or  some  other  part  of  the  will. 

XXIII.  And  be  it  further  enacted,  that  no  conveyance  or  other  act 
made  or  done  subsequently  to  the  execution  of  a  will  of  or  relating  to 
any  real  or  personal  estate  therein  comprised,  except  an  act  by  which 
such  will  shall  be  revoked  as  aforesaid,  shall  prevent  the  operation  of 
the  will  with  respect  to  such  estate  or  interest  in  such  real  or  personal 
estate  as  the  testator  shall  have  power  to  dispose  of  by  will  at  the  time 
of  his  death. 

XXIV.  And  be  it  further  enacted,  that  every  will  shall  be  construed 
with  reference  to  the  real  and  personal  estate  comprised  in  it  as  if  it 
had  been  executed  immediately  before  the  death  of  the  testator,  un- 
less a  contrary  intention  shall  appear  by  the  will. 

7  Wm.  IV  &  1  Vict.  c.  26,  §§  XVIII-XXIV  (1837). 


SECTION    2.— REVOCATION    BY    SUBSEQUENT    INSTRU^ 

MENT 


BROOK  V.  WARDE. 

(Nisi  Prius.     1572.    3  Dyer,  310b.) 

One  Kyete,  of  Kent,  by  his  will  in  writing,  devised  his  land  of 
gavelkind  to  one  Harrison  in  fee;  and  five  days  before  his  death  be 
revoked  his  will  in  this  point,  by  parol  only,  in  the  presence  of  three 
witnesses,  requiring  their  testimony  of  his  present  revocation;    and 


230  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

said  to  them  further,  that  he  would  alter  this  in  his  written  will  when 
he  came  to  town,  &c.,  and  before  his  coming  thither  he  was  murdered 
by  the  said  Harrison.  And  Harrison  caused  the  will  in  writing,  as  it 
was  at  first,  to  be  proved;  and  by  color  thereof  entered  into  the  devise, 
and  then  was  attainted  of  murder,  and  hanged:  and  his  son  entered 
by  the  law  of  gavelkind,  s.  The  father  to  the  bough,  the  son  to  the 
plough.  This  matter  came  out  in  evidence  to  a  jury  of  Kent  this 
term,  in  ejectione  firmse  between  Brooke  and  Warde;  and  tWs  manner 
of  revocation  by  parol  as  above  was  affirmed  for  sufficient  revocation 
at  bar  and  bench,  although  it  was  not  in  writing,  nor  the  first  will  in 
that  point  cancelled  or  defaced ;  vide  bene.'' 


LYON  V.  DADA. 
(Supreme  Court  of  Michigan,  1901.     127  Mich,  395,  86  N.  W.  946.) 

Montgomery,  C.  J.  This  is  an  appeal  from  an  order  of  the  circuit 
court  refusing  probate  to  the  will  of  Laura  E.  Dada,  deceased.  A  will 
of  later  date  was  offered  for  probate,  and  the  decision  denying  probate 
to  this  will  was  affirmed  by  this  court  in  Lyon  v.  Dada,  111  Mich.  340, 
69  N.  W.  654.  That  later  purported  will  contained  a  clause  revoking 
all  former  wills. 

The  question  presented  by  this  appeal  is  whether  denial  of  probate 
to  this  will  is  res  ad  judicata  upon  the  question  of  whether  it  revokes 
the  former  will.  This  question  was  before  the  court  of  Massachusetts 
in  the  early  case  of  Laughton  v.  Atkins,  1  Pick.  535,  where  this  subject 
is  treated  in  an  able  and  exhaustive  opinion  by  Parker,  C.  J.  The  prin- 
ciples to  be  extracted  from  that  case  are  that  all  persons  interested  in 
an  estate  are  parties  to  the  probate  proceedings,  and  bound  by  them, 
and  that  the  disallowance  of  a  will  in  toto  on  the  ground  of  undue  in- 
fluence amounts  to  a  determination  that  the  revocatory  clause  is  in- 

2  "In  England,  before  the  statute  of  frauds,  a  written  will  might  be  re- 
voked by  a  nuncupative  testament,  and  it  was  in  consequence  of  an  atrocious 
conspiracy  to  set  up  a  nuncupative  will  over  a  prior  written  one  that  the 
glaring  defect  in  the  law  came  to  be  perceived,  and  that  the  statute  was 
passed.  The  history  of  the  transaction  is  given  in  a  note  to  Matthews  v. 
Warner,  4  Ves.  196.  Mr.  Cole,  three  years  before  his  death,  had  made  a 
written  will  giving  £3,000  to  charitable  uses.  Mrs.  Cole  set  up  a  nuncupa- 
tive will,  by  which  the  whole  estate  was  given  to  her.  Upon  the  trial  it  ap- 
peared that  most  of  the  witnesses  to  this  will  were  perjured,  and  that  Mrs. 
Cole  was  guilty  of  subornation.  And  upon  this  occasion  Lord  Nottingham 
said :  'I  hope  to  see,  one  day,  a  law  that  no  written  will  should  be  revoked, 
but  by  writing.'  The  next  year,  the  statute  of  frauds  was  passed.  *  *  * 
There  are  very  good  reasons  why  an  individual,  he  who  has  not  yet  exe- 
cuted a  written  will,  should  be  permitted,  under  peculiar  circumstances  to 
make  a  verbal  one.  But  when  he  has  already  executed  a  written  will,  with 
all  the  solemnities  of  the  law,  there  are  equally  strong  reasous  wliy  the  rev- 
ocation of  it  should  be  attended  with  the  same  solemnities."  Grimke,  J., 
in  Devisees  of  David  McCune  v.  House,  8  Ohio,  144,  145,  31  Am.  Deo.  438 
(1837). 


Ch.   7)  THE   REVOCATION   OF   WILLS.  231 

effectual.  This  case  was  cited  and  followed  in  Rudy  v.  Ulrich,  69 
Pa.  177,  8  Am.  Rep.  238,  and  is  cited  and  approved  in  Wallis  v.  Wal- 
lis,  114  Mass.  512. 

In  the  present  case  it  was  determined  in  the  former  issue  that  the 
entire  will  was  void  on  the  ground  of  undue  influence.  There  was  no 
attempt  to  probate  any  part  of  the  will,  nor  was  the  determination 
confined  to  any  single  clause  of  the  will.  We  think  the  case  is  within 
the  principle  of  those  cited.  See,  also,  Dudley  v.  Gates,  124  Mich. 
440,  83  N.  W.  97,  86  N.  W.  959. 

The  judgment  of  the  circuit  court  will  be  reversed,  and  an  order 
entered  ajdmitting  the  will  to  probate.  The  appellant  will  be  entitled  to 
recover  his  costs,  to  be  paid  out  of  the  estate. 

Hooker,  J.,  did  not  sit.    The  other  justices  concurred.' 

s  The  same  doctrine  holds  where  the  later  will  is  rejected  for  lack  of 
testamentary  capacity.  In  the  Matter  of  the  Probate  of  the  Will  of  David 
Goldsticker,  192  N.  Y.  35,  84  N.  E.  581  (1908).  See  cases  cited  in  18  L.  R.  A. 
(N.  S.)  99,  note.  But  In  New  York  the  decree  rejecting  probate  is  not 
eoDchisive  as  regards  realty,  because  a  decree  admitting  a  will  to  probate  is 
in  that  state  conclusive  only  as  to  personalty.  Corley  v.  McElmeel,  149  N. 
Y.  228,  43  N.  E.  628  (1896). 

"A  will  legally  made  stands  until  legally  revoked.  It  cannot  be  revoked 
by  any  act  of  destruction,  unless  the  act  is  done  with  an  intention  to  revoke ; 
and  a  person,  not  having  testamentary  capacity,  cannot  have  an  intention  to 
revoke  a  will.  He  is  legally  incapable  of  it.  In  such  case  the  burning  of 
the  will  can  have  no  effect  whatever,  provided  the  contents  can  be  clearly 
and  certainly  proved  by  other  evidence.  The  written  instrument  may  be 
burnt,  the  surest  and  best  evidence  of  the  will  may  be  destroyed,  but  the  will 
itself,  if  a  draft  of  it  can  be  proved,  outlives  the  act  of  destruction,  and  the 
testamentary  dispositions  stand.  *  *  *  j  am  of  the  opinion  that  the 
same  result  follows  where  the  act  of  destruction  is  produced  by  undue  in- 
fluence, as  where  incapacity  exists.  There  can  hardly  be  a  logical  differ- 
ence, whether  the  act  of  destruction  be  accomplished  by  a  testator  who  has 
no  mind  to  exercise,  or,  having  a  mind  of  his  own,  is  prevented  from  exer- 
cising it.  Insanity  takes  away  testamentary  capacity,  while  undue  influence 
does  not  allow  it  to  act.  There  must  be  animus  revocandi.  In  the  one  case 
providence  prevents  it;  in  the  other  case  it  is  prevented  by  the  wrongful 
act  of  man.  In  each  case  the  hand  of  the  testator  acts ;  but  the  mind  does 
not  go  with  the  act."  Peters,  J.,  in  Rich  v.  Gilkey,  73  Me.  595,  597,  fiOl 
(1881).  On  the  probate  of  a  will  which  was  revoked  as  a  result  of  undue  influ- 
ence, see  Batton  v.  Watson.  13  Ga.  63.  .58  Am.  Dec.  504  (1853);  Voorhees  v. 
Voorhees.  39  N.  Y.  4&3.  100  Am.  Dec.  458  (1868).  See,  also,  Mclntire  v.  Worth- 
ington,  68  3.rd.  203,  12  Atl.  2.51  (1887) ;  Laughton  v.  Atkins,  1  Pick.  (Mass.)  535, 
546.  547  (1823). 

In  Rudy  v.  Ulrich,  69  Pa.  177,  8  Am.  Rep.  238  (1871),  where  in  prior  liti- 
gation a  later  will  had  been  found  invalid  as  an  entirety  because  of  imdue 
influence,  and  then  in  the  case  at  bar  the  jury  found  that  there  was  no 
undue  influence  as  to  the  revocation,  the  court  held  that  it  was  reversible 
error  to  submit  to  the  jury  the  question  of  whether  the  later  will  revoked 
the  earlier,  as  a  collateral  attack  on  the  earlier  decree  could  not  be  allowed. 
Besides,  said  the  court,  "it  cannot  be  known  with  any  degree  of  assurance, 
suflicient  to  justify  a  legal  judgment,  that  where  there  is  a  clause  of  revo- 
cation in  a  will  making  a  certain  disposition  of  property,  that  the  testator 
really  intended  to  revoke  a  prior  will  making  a  different  disposition,  except 
for  the  purix>se  of  substituting  in  place  thereof  that  contained  in  the  second 
will."     69  Pa.  183,  8  Am.  Rep.  238. 

On  the  effect  of  acquiescence  in  the  destruction  of  a  will  under  a  statute 
providing  for  the  establishment  of  destroyed  wills,  see  Parsons  v.  Balson,  129 
Wis.  311,  109  N.   W.  136  (1906).     At  pages  318,  319,  of  129  Wis.,  and  page 


232  LAST  WILLS  AND   TESTAMENTS.  (Part  1 

DENNY  V.  BARTON. 

(Ecclesiastical  Court,  1818.     2  Phillimore,  575.) 

William  Harris  of  New  Alresford,  in  Hampshire,  died  in  May,  1817, 
possessed  .of  about  i34,000  personal  property,  leaving  a  will  dated 
13th  of  March,  1812,  and  a  codicil  of  the  26th  of  October,  1815.  Pro- 
bate of  both  these  instruments  was  granted  in  common  form  in  July, 
18 17,  to  Charles  Barton  and  Jonathan  Rashleigh,  two  of  the  executors 
named  in  them. 

A  second  codicil  was  now  propounded  in  an  allegation  by  Louisa 
Denny,  a  natural  daughter  of  the  deceased.  The  codicil  was  in  the 
shape  of  a  letter  dated  in  June,  1808,  and  addressed  and  endorsed  as 
follows :  "To  Joseph  Leacock,  Esq.,  not  to  be  opened  until  after  the 
death  of  William  Harris,  Esq."  Joseph  Leacock  was  a  nephew  of 
the  deceased,  and  the  residuary  legatee  and  one  of  the  executors  under 
the  will  which  had  been  proved;  but  he  was  in  the  West  Indies  at 
the  time  of  his  uncle's  death,  and  had  died  before  he  had  arrived  in 
England.    In  the  will  there  was  a  clause  revocatory  of  all  former  wills. 

The  letter  was  as  follows : 

"My  dear  Joe. — I  find  I  am  not  long  for  this  world;  and  shall, 
therefore,  disclose  to  you  a  secret  which  is  known  to  very  few,  though 
Mrs.  Harris  is  acquainted  with  it.  I  have  a  natural  daughter,  by  the 
name  of  Louisa  Denny,  who  is  now  a  teacher  at  a  lady's  boarding 
school,  at  Hampstead ;  the  name  of  the  governess  who  keeps  the  school 
IS  Scriven.  I  have  bred  up  this  girl  with  care  and  attention,  and  have 
given  her  a  good  education.  I  have  not  mentioned  her  in  my  will, 
because  the  world  should  not  know  of  my  indiscretion;  but  I  desire 
you  (to  whom  I  have  left  all  my  property)  to  pay  within  six  months 
after  my  decease,  to  this  young  lady,  one  thousand  pounds  sterling, 
or  allow  her  an  annuity  of  fifty  pounds  per  annum,  from  the  day  of 

138  of  109  N.  W.,  Kerwln,  J.,  says :  "It  is  argued  that  section  3791,  St.  1898, 
contains  no  limitation,  and  provides  that,  whenever  any  will  of  real  estate 
or  personal  property  shall  be  lost  or  destroyed  by  accident  or  design,  the 
county  court  shall  have  power  to  take  proof  of  the  execution  and  validity  of 
such  will  and  establish  the  same.  But  the  statute  must  have  a  reasonable 
const rurtion  in  furtherance  of  justice  and  the  object  of  its  enactment.  The 
question  in  all  cases  of  reproduction  of  destroyed  wills  under  this  statute  is 
whether  the  circumstances  of  destruction  and  acquiescence  amoimt  to  a  rev- 
ocation. It  would  seem  that  the  rule  most  consonant  with  the  statute  is  that 
if  knowledge  of  the  destruction  of  the  lost  will  be  not  brought  home  to  the 
testator  within'  such  time  as  would  reasonably  enable  him  to  reproduce  it,  or 
If  he  was  prevented  from  so  doing,  it  might  be  probated  upon  proper  proof 
of  the  facts ;  but  where  reasonable  time  elapses  after  knowledge  of  the  de- 
struction, coupled  with  opportunity  to  reproduce  the  destroyed  will,  a  pre- 
sumption of  revocation  arises,  and  the  destroyed  will  cannot  be  admitted 
to  probate."  See,  also,  Cutler  v.  Cutler,  130  N.  C.  1,  40  S.  E.  689,  57  L.  R. 
A.  209,  89  Am.  St.  Hep.  854  (1902).  Quajre  as  to  the  effect  of  such  a  statute 
where  a  will  Is  destroyed  as  a  result  of  undue  influence?  But  that,  in  the  ab- 
sence of  special  statute  a  destruction  cannot  become  by  ratification  a  revoca- 
tion, see  note  to  Giles  v.  Warren,  iwst,  p.  246. 


Qh.  7)  THE   REVOCATION   OF   WILLS.  233 

my  death.  I  further  desire  you  will  pay  to  her  mother,  whose  name 
is  Sarah  Whitear,  living  in  East  Street,  in  the  town  of  Alresford,  with 
her  mother  as  a  mantua-maker,  ah  annuity  of  twenty-five  pounds  per 
annum,  from  the  day  of  my  decease,  in  quarterly  payments.  I  have 
always  found  you  to  be  a  good  lad;  and  I  trust,  as  a  man  of  honour, 
you  will  attend  and  follow  the  directions  I  have  here  given  you,  m 
the  same  manner  as  though  contained  in  my  will.  My  friend,  Captam 
Sealy,  who  lives  at  No.  19,  Guildford  street,  will  give  you  further  m- 
formation  respecting  Louisa.    God  bless  you,  my  dear  Joe. 

"I  am  your  sincere  friend  and  affectionate  uncle,    William  Hams. 

"P.  S.— I  have  a  little  money  in  the  three  per  cent,  consolidated 
funds  which  will  enable  you  to  discharge  the  above  legacy  and  annuity. 

"June,  1808." 

Sir  John  Nicholl.  There  is  no  doubt  in  this  case.  The  codicil 
is  in  the  form  of  a  letter ;  but  it  is  quite  clear  that  the  deceased  in- 
tended it  to  be  a  confidential  trust  to  his  nephew  not  to  be  communi- 
cated till  after  his  death.  It  was  intended  to  operate  independently  of 
his  will.  I  should  not  consider  it  irrevocable;  but  I  think  a  will  with 
a  common  revocatory  clause  would  not  revoke  this  paper.  There  have 
been  a  variety  of  instances  in  which  papers  of  this  sort  have  been  ad- 
mitted to  probate.  It  was  found  uncancelled  and  unrevoked ;  and  it 
has  only  been  in  consequence  of  the  nephew's  death  that  it  has  been 
necessary  to  bring  it  before  the  court. 

r  am  clearly  of  opinion  that  it  can  operate ;  and  that  it  was  not  in- 
tended to  be  revoked,  notwithstanding  the  revocatory  clause  in  the. 
will;  and,  therefore,  I  admit  the  allegation.* 


CADELL  V.  WILCOCKS. 
(High  Court  of  Justice,  Probate  Division.     [1898]  P.  21.) 

Sir  F.  H.  Jeune,  President."  The  question  in  this  case  is,  which 
of  three  wills  made  respectively  on  April  26,  1890,  July  5,  1894,  and 
September  5,  1895,  by  the  testatrix,  Mrs.  Lucy  Biddulph,  should  be 
admitted  to  probate. 

The  father  of  the  testatrix,  Robert  Bickerstaffe,  left  il6,000  among 
his  four  daughters  in  equal  shares  for  life,  with  power  of  appointment 

4  "Even  if  the  second  instrument  contains  a  general  revocatory  clause, 
that  is  not  conclusive,  and  the  court  will,  notwithstanding,  consider^  whether 
:s  was  the  intention  of  the  testator  to  revoke  a  bequest  contained  m  a  pre- 
vious will.  Dennv  v.  Barton.  2  Phillim.  575.  On  the  other  hand  though 
there  be  no  express  revocatory  clause,  the  question  Is  whether  the  inten- 
tion of  the  testator,  to  be  collected  from  the  instrument,  was  that  the  dis- 
positions of  the  earlier  will  should  remain  in  whole  or  m  P%\^^^^f''-^;^ 
Sir  J.  Hannen.  President,  in  Dempsey  v.  Lawson,  2  P.  D.  98^  H^  U»<0.  »ee 
aote  13  to  Simpson  v.  Foson,  post,  p.  238. 

3  The  statement  of  facts  is  omitted. 


234  LAST   WILLS  AND   TESTAMENTS.  (Part  1 

to  each  of  them  by  will  amongst  her  children,  and,  in  default  of  ap- 
pointment, to  her  children  equally. 

At  the  time  of  the  will  of  1890,  the  testatrix  had  two  daughters, 
Anne,  then  married,  and  Gertrude,  then  a  widow,  and  three  sons,  Mid- 
dleton,  Assheton,  and  Franc.  By  the  will  of  1890  the  testatrix,  after 
revoking  all  previous  wills,  gave  her  daughter  Gertrude  "the  sum  of 
i4,000  absolutely  for  her  sole  use  and  benefit,"  describing  it  as  "being 
the  sum  left  to  me  by  the  will  of  my  father  the  late  Robert  Bicker- 
staffe."  She  then  bequeathed  £50  to  her  steward,  Finton  McDonald, 
and  the  residue  of  her  property  to  her  five  children  equally,  and  ap- 
pointed her  sons,  Middleton  and  Assheton,  executors.  It  was  not  de- 
nied before  me  that  this  was  a  good  execution  by  the  testatrix  of  the 
limited  power  of  appointment  vested  in  her  by  the  will  of  her  father. 

Between  the  wills  of  1890  and  189-1  the  daughter  Gertrude  married 
Dr.  Nevil  Cadell,  and  I  understand  that  the  sons  Middleton  and  Asshe- 
ton received  a  benefit  under  the  will  of  an  uncle,  the  testatrix's  brother. 
By  her  will  of  1894  the  testatrix  bequeathed  to  her  daughter  Ger- 
trude "the  sum  of  £4,000  for  her  own  absolute  use  and  benefit,  and 
to  dispose  of  as  she  may  think  fit."  She  then  gave  £50  to  her  steward, 
Finton  McDonald,  and  the  residue  of  her  property  to  her  children 
Franc  and  Gertrude  equally,  and  appointed  Franc,  Gertrude  and  Dr. 
Nevil  Cadell  executors. 

Between  the  wills  of  1894  and  1895,  Franc,  the  son  of  the  testatrix, 
and  also  the  steward  died.  A  letter  of  the  testatrix  containing  her  in- 
structions for  the  will  of  1895  was  produced  to  me,  but  I  do  not  think 
it  material.  By  the  will  of  1895  the  testatrix  made  a  bequest  to  her 
daughter  Gertrude  in  these  terms:  "All  the  property  real  freehold  or 
personal  wheresoever  situate  of  which  I  may  die  seised  or  possessed 
for  her  own  absolute  use  and  benefit  and  to  dispose  of  as  she  may 
think  fit,"  and  gave  the  same,  in  case  of  her  daughter  predeceasing 
her,  to  her  daughter's  husband.  Dr.  Nevil  Cadell,  and  appointed  her 
dausrhter  and  Dr.  Cadell  executrix  and  executor. 

Neither  the  will  of  1894,  nor  the  will  of  1895,  contained  any  words 
of  revocation ;  and  it  was  not  disputed  before  me  that  neither  the 
terms  of  the  will  of  1894,  nor  those  of  the  will  of  1895,  were  sufficient 
to  effect  a  valid  execution  of  the  limited  power  of  appointment  vested 
in  the  testatrix. 

I  think  that  this  case  is  governed  by  the  familiar  principle  of  law 
stated  in  Williams  on  Executors  (9th  Ed.)  p.  138,  and  approved  by 
Lord  Penzance  in  Lemage  v.  Goodban,  1  P.  &  D.  57,  that  the  mere 
fact  of  making  a  subsequent  testamentary  paper  does  not  work  a  total 
revocation  of  the  prior  one,  unless  the  latter  expressly  or  in  effect 
revoke  the  former,  or  the  two  be  incapable  of  standing  together,  and 
if  a  subsequent  testamentary  paper,  whether  will  or  codicil,  be  par- 
tially inconsistent  with  one  of  earlier  date,  then  such  latter  instru- 
ment will  revoke  the  former  as  to  those  parts  only  where  they  are 
inconsistent. 


Qh.   7)  THE   REVOCATION   OF   WILLS.  235 

In  this  case  there  was  clearly  no  express  revocation,  in  whole  or 
in  par^,  of  the  will  of  1890  by  either  the  will  of  1894  or  the  will  of 
1895.     I  assent  to  Mr.  Inderwick's  contention  that,  had  there  been  a 
general  clause  of  revocation  in  either  the  will  of  1894  or  that  of  1895, 
it  would  have  revoked  the  whole  will  of  1890,  including  the  execution 
of  the  power  contained  in  it.    The  opinion  indeed  of  the  Delegates  m 
the  case  of  Hughes  v.  Turner,  4  Hagg.  Ecc.  30,  at  page  71,  if  cor- 
rectly reported,  would  appear  to  be  to  the  effect  that  a  clause  of  revo- 
cation per  se  does  not  revoke  the  portion  of  an  earlier  will  which  has 
executed  a  power;   and  in  In  the  Goods  of  Merritt,  1  Sw.  &  Tr.  113, 
and  in  In  the  Goods  of  Joys,  4  Sw.  &  Tr.  214,  Sir  Cresswell  Cresswell 
expressed  a  similar  opinion.    It  might  be  considered  doubtful  whether 
the  case  of  Sotheran  v.  Dening,  20  Ch.  D.  99,  in  the  Court  of  Appeal 
overruled  those  authorities,  because  weight  was  given  to  the  consid- 
eration, which  arose  in  that  case,  that  by  virtue  of  the  27th  section 
of  the  Wills  Act  a  general  bequest  operated  on  the  subject-matter  of 
the  power  of  appointment,  and  so  strengthened  the  evidence  in  favor 
of  an  intention  to  revoke  its  previous  execution.     But  in  In  re  Kmg- 
don,  32  Ch.  D.  604,  the  question  of  revocation  by  a  general  revocatory 
clause  arose  simpliciter,  there  being  no  subsequent  provision  relating 
to  the  subject-matter  of  the  power  in  question,  and  Kay,  J.,  clearly 
considered  that  he  was  justified  by  the  authority  of  Sotheran  v.  Den- 
ing [supra]  in  holding  that  a  will  executing  a  power  was  revoked  in 
toto  by  general  words  of  revocation  in  a  subsequent  will.     The  ef- 
fect of  his  decision  is,  I  venture  to  think,  that  on  this  point  of  law 
common  sense  at  last  prevailed.     I  cannot  understand  why  express 
words,  revoking  all  previous  wills,  should  be  supposed  to  spare  an 
■   execution  of  a  power  contained  in  one  or  more  of  them  from  the  fate 
inflicted  on  all  the  rest  of  their  contents.    But,  in  the  present  instance, 
there  are  no  express  words  to  revoke  the  will  of  1890. 

Next,  is  there  anything  in  the  wills  of  1894  or  1895  inconsistent 
with  the  execution  of  the  power  in  the  will  of  1890,  or,  in  other  words, 
is  there  anything  that  by  implication  effects  a  revocation  of  that  ex- 
ecution? It  is  not  necessary  to  consider  whether,  if  the  power  of  ap- 
pointment in  this  case  had  been  general  and  not,  as  it  was,  limited, 
the  general  bequests  in  the  wills  of  1894  and  1895  would  have  been 
not  only,  by  virtue  of  the  27th  section  of  the  Wills  Act,  effectual  to 
execute  the  power,  but  also  sufficient  to  revoke  a  previous  execution 
of  it  It  is,  I  think,  clear  that  these  general  words  of  bequest,  which 
do  not  execute  the  limited  power,  as  the  27th  section  of  the  Wills 
Act  has  no  application,  cannot  revoke  or  affect  its  previous  execu- 
tion. The  wills  of  1890  and  1895  can,  therefore,  stand  together;  and, 
subject  to  proof  in  common  form,  there  should  be  probate  of  both  of 
them  The  will  of  1894  I  regard  as  revoked  by  that  of  1895,  as  both 
wills  profess  to  deal  with  the  whole  of  the  testatrix's  own  property.' 

6  "Prima  facie  every  document  purporting  to  be  testamentary,   and  signed 
and  witnessed  in  accordance  witli   the  provisions  of  tlie  Wills  Act,  ougiit 


236  LAST   WILLS  AND  TESTAMENTS.  (Part  1 

WALCOTT  V.  OCHTERLONY. 
(Prerogative  Court  of  Canterbury,  1837.     1  Curt.  580.) 

Sir  Herbert  Jenner.''  Charlotte  Anne  Montgomerie  Ochterlony, 
the  deceased  in  this  case,  died  at  Edinburgh,  on  the  9th  of  June,  1835, 
of  the  age  of  twenty-three  years,  leaving  an  only  brother,  Sir  Charles 
Aletcalf  Ochterlony,  Baronet,  her  only  next  of  kin.  On  the  30th  of 
April,  1834,  the  deceased,  when  in  London,  with  her  own  hand  made 
her  will,  of  which  she  appointed  James  George,  John  Edward  Wal- 
cott,  and  John  Ross  executors.  This  will  was  deposited  with  Mr. 
George  for  safe  custody;  and  the  question  is,  Whether,  under  the 
circumstances  of  this  case,  that  will  is  revoked?  In  November,  1834, 
the  deceased  went  to  lodge  at  the  house  of  a  IMrs.  Bogle  in  Edin- 
burgh, where  she  continued  until  her  death.  In  April,  1835,  it  ap- 
pears that  she  was  attacked  with  a  disease  of  the  heart,  of  which  she 
ultimately  died;  and  her  medical  attendants  directed  that  she  should 
not  be  suffered  to  write  or  read,  or  attend  to  business,  in  order  that 
she  might  not  be  agitated. 

In  the  beginning  of  May,  1835,  Mrs.  Bogle,  by  the  deceased's  de- 
sire, wrote  to  Captain  Walcott's  wife  at  Bath  requesting  her  to  get 
her  husband  to  write  to  Mr.  George,  directing  him  to  destroy  the  de- 
ceased's will.  Captain  Walcott  accordingly  wrote  to  Mr.  George,  but 
he  declined  to  destroy  the  will,  but  sent  it  to  Captain  Walcott  that  he 
might,  if  he  thought  proper,  destroy  it  or  forward  it  to  Miss  Ochter- 
lony. Captain  Walcott,  it  appears,  on  the  10th  of  June,  enclosed  the 
will  in  a  letter  to  the  deceased,  which  he  forwarded  by  a  lady  who 
was  going  from  Bath  to  Edinburgh,  but  the  deceased  died  before  the 

to  be  admitted  to  probate.  When,  however,  there  are  more  testamentary 
documents  than  one,  the  presumptive  admissihilify  to  probate  of  the  docu- 
ments may  be  disj>laced,  because  it  may  be  that  there  is  a  sequence  in  the 
dates  of  the  execution  of  the  documents,  which,  coupled  with  the  words  of 
the  later  documents,  or  the  inferences  to  be  drawn  from  those  words,  leads 
to  the  conclusion  that  the  later  document  was  intended  as  a  revocation  of 
the  earlier,  or,  it  may  be,  intended  to  revoke  partially  or  to  modify  the 
earlier  document,  or,  lastly,  it  may  be  that,  apart  from  any  question  of  revo- 
cation, the  court  has  to  deal  with  documents  which  are  proved  to  have  been 
executed  on  the  same  date  and  occasion,  or  which  are  undated,  and  as  to 
which  it  is  Impossible  to  affirm  that  the  one  has  any  priority  in  time  of  exe- 
cution over  the  other.  In  this  last  case,  if  the  documents  are  so  incon- 
sistent that  they  cannot  stand  together,  in  my  opinion  probate  becomes  im- 
possible, because  the  presumption  of  admissibility  to  probate  of  a  testa- 
mentary document  executed  in  accordance  with  the  Wills  Act  is  displaced." 
V'aughan  Williams,  L.  J.,  in  Townsend  v.  Moore.  [IOO.jI  P.  OG,  77.  On  the  ef- 
fect of  a  codicil  as  altering  or  revoking  a  legacy  or  devise  in  a  will,  see  11 
Pi-ob.  Rep.  Aim.  115,  note;    1  L.  R.  A.  (N.  S.)  nOT.  note. 

"In  construing  a  will  and  codicil  it  is  the  general  rule  that  the  disposition 
made  by  the  will  should  not  be  disturbed  further  than  is  absolutely  necessa- 
ry to  give  effect  to  the  codicil.  The  codicil  revokes  only  so  much  of  the  will 
as  is  inconsistent  with  it."  Carter,  J.,  in  Wardner  v.  Baptist  Memorial 
Board,  232  111.  am,  611,  83  N.  E.  1077,  1079,  122  Am.  St.  Rep.  138  (1908). 

7  The  statement  of  facts  is  omitted. 


Ch.   7)  THE   REVOCATION   OF   WILLS.  237 

will  arrived.  It  appears  that  up  to  the  time  of  her  death,  the  deceased 
expressed  her  anxiety  that  the  will  should  be  destroyed,  and  stated  to 
Mrs.  Bogle  that  she  would  make  a  new  will  in  order  to  revoke  the 
former,  but  that  Mrs.  Bogle  dissuaded  her  from  so  doing,  informing 
her  that  as  the  will  would  be  destroyed  it  was  unnecessary  to  make  a 
new  one. 

It  is  proved  by  Mrs.  Bogle,  that  the  letters  were  written  by  the  de- 
ceased's direction,  and  that  the  passages  relating  to  the  destruction  of 
the  will  were  read  over  to  and  approved  of  by  her.  Now,  although 
looking  at  the  contents  of  the  will,  there  was  no  reason  to  suppose 
that  the  deceased  would  depart  from  it;  yet  improbability  must  give 
way  to  facts,  and  there  is  no  ground  to  suspect  that  Mrs.  Bogle,  who 
was  ignorant  of  the  contents  of  the  will,  had  any  interest  or  bias  in 
respect  to  it. 

The  first  question,  therefore,  on  the  facts  she  deposed  to  is.  What 
was  the  intention  of  the  deceased?  There  could  be  no  doubt  of  her 
animus  revocandi,  and  having  established  this  point,  what  does  the 
law  require  to  give  effect  to  such  intention? 

The  Statute  of  Frauds  provides  that  no  will  in  writing  of  personal 
estate  shall  be  repealed,  nor  any  clause  or  bequest  therein  altered  or 
changed  by  any  words.  Is  this  a  revocation  by  words?  I  apprehend 
not.  The  deceased  did  not  say,  "I  revoke  my  will,"  but  in  effect  says, 
"Mr.  George  is  in  possession  of  my  will ;  I  am  not  able  to  destroy  it 
myself,  but  I  desire  that  he  will  destroy  it ;"  and  this  amounted  to 
a  present  intention  absolutely  to  revoke,  which  was  written  down  at 
the  time,  approved  of  by  the  deceased,  and  by  her  direction  communi- 
cated to  the  person  in  whose  custody  the  will  was ;  it  was  an  absolute 
direction  to  revoke,  reduced  into  writing  in  the  deceased's  lifetime. 
There  is  nothing  in  the  Statute  of  Frauds  which  prevents  such  revo- 
cation having  effect,  and  it  is  clear  that,  prior  to  that  statute,  a  will 
might  be  so  revoked.  Further,  the  deceased  subsequently  directed  a 
letter  to  be  written  to  Mr.  George,  intimating  that  she  would  give  her 
reasons  thereafter,  and  evinced  anxiety  for  a  reply  to  that  letter  down 
to  the  time  of  her  death ;  there  can  be  no  doubt  that  she  died  in  the 
intention  to  revoke  the  will,  and  in  the  belief  that  it  was  revoked. 

I  am  of  opinion,  that  the  will  in  this  case  is  revoked,  and  that  the 
deceased  is  dead  intestate.* 

8  "By  the  act  of  1789  no  will  or  clause  of  any  will  is  revocable  but  by  a 
subsequent  will  or  codicil  or  other  writing  executed  according  to  the  provi- 
sions of  that  act.  or  by  concealing  or  destroying  it.  To  say  that  a  will,  not 
signed  by  the  testator  or  attested  by  three  witnesses,  could  revoke  a  former 
will,  would  be  to  repeal  the  third  section  of  that  act."  Evans,  J.,  in  Farr  v. 
O'Neall,  1  Rich.  Daw  (S.  C.)  SO,  88  (.1844).  For  a  case  where  a  will  was  re- 
voked by  a  witnessed  writing  not  a  will,  see  Toomer  v.  Sobiuska,  [1907]  P. 
106. 

In  Mahai-ajah  Pertab  Narain  Singh  v.  Maharanee  Subhao  Kooer,  L.  R.  4 
Ind.  App.  228  (1877),  where  it  was  held  that  a  verbal  direction  given  by  a 
Hindu  testator  to  a  third  party,  to  destroy  his  will,  revoked  the  will,  though 
the  third  person  did  not  in  fact  destroy  it,  the  court  said  (page  245)  that  the 


238  LAST   WILLS   AND   TESTAMENTS.  (Part   1 

HELLIER  V.  HELLIER. 

(High  Court  of  Justice,  Probate  Division,  1SS4.    L.  R.  9  P.  D.  237.) 

Butt,  J.^  In  this  case  the  facts  proved  and  the  inferences  to  be 
drawn  from  them  do  not  create  much  difficulty,  but  the  question  for 
the  decision  of  the  court  is  as  to  the  legal  consequences  arising  from 
those  facts.  A  will  was  duly  made  by  this  testator  in  the  month  of 
April,  1864,  by  which  he  leaves  the  whole  of  his  estate  to  his  wife, 
the  present  plaintiff,  who  propounds  the  will,  and  he  makes  her  sole 
executrix.  It  is  also  established  by  evidence  that  in  the  autumn  of 
1877  the  testator  executed  in  due  form  another  will ;  and  that  that 
other  will  made,  in  part,  a  different  disposition  of  his  property.  I 
do  not  think  that  there  is  evidence  from  which  I  ought  to  infer  that 
there  was  any  change  of  the  executrix,  or  any  revocatory  clause  in  the 
second  will,  or  any  bequests  wholly  inconsistent  with  the  first  will. 

Those  being  the  facts,  what  is  the  conclusion  that  is  to  follow?  I 
am  of  opinion  that  in  the  absence  of  any  revocatory  clause  in  the  sec- 
ond will  or  a  change  of  executrix,  the  second  will,  which  is  lost,  can- 
not, unless  the  dispositions  of  the  first  will  were  wholly  altered  by  it, 
be  held  to  have  revoked  the  first,  and  in  my  opinion  there  was  no  such 
alteration  of  the  disposition  of  the  property.  This  conclusion  seems 
to  me  consistent  with  the  interpretation  that  has  already  been  put  up- 
on the  judgment  of  the  Privy  Council  in  Cutto  v.  Gilbert,  9  jMoo.  P. 
C.  131,  by  Lord  Penzance  (then  Sir  J.  Wilde)  in  the  case  of  Lemage 
V.  Goodban,  Law  Rep.  1  P.  &  M.  57.  *  *  *  I  hold  that  the  second 
will  in  this  case,  with  the  contents,  as  far  as  we  know  them,  did  not 
revoke  the  first.    *    *    *  lo 


SIMPSON  V.  FOXON. 
(High  Court  of  Justice,  Probate  Division.     [1907]  P.  54.) 

On  March  15,  1898,  John  Foxon  made  a  will  disposing  of  all  of 
his  property  and  appointing  his  daughter  executrix.  On  September 
11,  1903,  he  duly  executed  as  a  will  a  document  on  a  printed  form  com- 
mencing :  "This  is  the  last  and  only  will  and  testament  of  me,  John 
Foxon."  This  document  disposed  of  only  a  life  insurance  policy  of 
£4.  13s.  and  appointed  William  Biggs  executor.  On  April  11,  1905, 
he  duly  executed  as  a  codicil  a  further  document  described  as  "a  codi- 
cil to  the  last  will."     This  codicil  gave  certain  bequests,  revoked  all 

only  difference  between  the  case  before  it  and  Walcott  v.  Ochtorlory  was 
"that  the  authority  was  given  here  by  words,  and  there  by  a  writing  sulti- 
cient  to  satisfy  the  Statute  of  Frauds.  In  that  case,  as  In  this,  tlie  au- 
thority was  not  exercised  by  the  actual  destruction  of  the  will." 

»  The  statement  of  facts  is  omitted,  and  part  only  of  the  opinion  is  given. 

10  See  Hitchins  v.  Basset,  2  Salk.  592  (1693). 


Ch.  7)  THE  REVOCATION  OF  WILLS.  239 

previous  appointments  of  executors  and  trustees,  and  appointed  Her- 
bert Simpson  and  William  Biggs  to  be  joint  executors  and  trustees 
"of  my  will." 

Sir  GoRELL  Barnes,  President.^*  There  is  no  doubt  to  my  mind 
that,  as  a  matter  of  fact,  the  deceased  cannot  really  have  intended  the 
policy  form  of  will  to  have  been  a  revocation  of  his  general  disposi- 
tions and  to  have  left  himself  intestate  as  to  the  greater  part  of  his 
property.  I  do  not  suppose  that  anyone,  having  these  facts  before  him, 
could  come  to  the  conclusion  that  the  deceased  did  so  intend. 

But  what  a  man  intends  and  the  expression  of  his  intention  are  two 
different  things.  He  is  bound,  and  those  who  take  after  him  are  bound, 
by  his  expressed  intention.  If  that  expressed  intention  is  unfor- 
tunately different  from  what  he  really  desires,  so  much  the  worse  for 
those  who  wish  the  actual  intention  to  prevail.  The  principle  has 
been  very  fully  considered  in  a  number  of  authorities.  I  think  there 
is  a  good  deal  more  authority  than  was  stated  to  me  in  the  arguments. 
The  numerous  authorities  reported,  such,  for  instance  as  Plenty  v. 
West  (1845)  4  Notes  of  Cases,  103,  1  Rob.  264,  where  the  words  in 
question  were  "this  is  the  last  will,"  arose  out  of  some  difference  of 
opinion  which  existed  in  former  days  as  to  the  effect  to  be  given  to 
those  words,  but  which  may  safely  be  considered  as  set  at  rest  by  the 
later  decisions.  The  words  "the  last  will"  would  not  revoke  a  former 
will,  if  not  inconsistent  with  it;  the  last  will  might  even  tend  to  con- 
firm what  had  gone  before.^^  And  so  it  is  necessary  to  see  what  are 
the  provisions  in  the  last  will,  and  if  these  provisions  are  inconsistent 
with  those  in  the  earlier  document  it  may  be  that  the  later  revokes 
the  earlier  one.  But  it  does  not  necessarily  follow  that  it  always  will 
do  so  if  the  two  documents  can  stand  properly  together. 

The  principle  to  be  generally  applied  in  considering  matters  of  this 
kind  is  very  well  stated  in  Lemage  v.  Goodban  (1865)  L.  R.  1  P.  & 
D.  57,  at  page  62,  where  Lord  Penzance,  quoting  from  Williams  on 
Executors  (6th  Ed.)  p.  156  (in  10th  Ed.  pp.  119,  120),  says:  "The 
mere  fact  of  making  a  subsequent  testamentary  paper  does  not  work 
a  total  revocation  of  a  prior  one,  unless  the  latter  expressly,  or  in  ef- 
fect, revoke  the  former,  or  the  two  be  incapable  of  standing  together  ; 
for  though  it  be  a  maxim,  as  Swinburne  says  above,  that  as  no  man 
can  die  with  two  testaments,  yet  any  number  of  instruments,  whatever 
be  their  relative  date,  or  in  whatever  form  they  may  be  (so  as  they  be 
all  clearly  testamentary),  may  be  admitted  to  probate,  as  together  con- 
taining the  last  will  of  the  deceased.  And  if  a  subsequent  testamentary 
paper  be  partly  inconsistent  with  one  of  an  earlier  date,  then  such  lat- 
ter instrument  will  revoke  the  former,  as  to  those  parts  only,  where 
they  are  inconsistent."    The  learned  judge  added:   "This  passage  truly 

11  The  statement  of  facts  is  rewritten  and  abbreviated. 

12  See  Freeman  v.  Freeman,  5  De  G.,  M.  &  G.  704  (1854) ;  Lemage  v.  Good- 
ban,  L.  R.  1  P.  &  D.  57  (1865) ;  Gordon  v.  Whitlock,  92  Va.  723,  24  S.  E.  342 
(1896) ;    Fry  v.  Fry,  125  Iowa,  424,  101  N.  W.  144   (1904). 


240  LAST   WILLS   AND   TESTAMENTS.  (Part   1 

represents  the  result  of  the  authorities";  and  he  continued  as  fol- 
lows: "The  will  of  a  man  is  the  aggregate  of  his  testamentary  in- 
tentions, so  far  as  they  are  manifested  in  writing,  duly  executed  ac- 
cording to  the  statute.  And  as  a  will,  if  contained  in  one  document, 
may  be  of  several  sheets,  so  it  may  consist  of  several  independent 
papers,  each  so  executed.  Redundancy  or  repetition  in  such  inde- 
pendent papers  will  no  more  necessarily  vitiate  any  of  them,  than  sim- 
ilar defects  if  appearing  on  the  face  of  a  single  document.  Now  it 
was  argued  that  in  the  case  of  more  than  one  testamentary  paper,  each 
professing  in  form  to  be  the  last  will  of  the  deceased,  it  is  necessary 
for  the  court,  before  concluding  that  they  together  constitute  the  will, 
to  be  satisfied  that  the  testator  intended  them  to  operate  together  as 
such.  In  one  sense  this  is  true,  for  the  intention  of  the  testator  in  the 
matter  is  the  sole  guide  and  control.  But  the  'intention'  to  be  sought 
and  discovered  relates  to  the  disposition  of  the  testator's  property, 
and  not  to  the  form  of  his  will.  What  dispositions  did  he  intAd? — 
not  which,  or  what  number,  of  papers  did  he  desire  or  expect  to  be 
admitted  to  probate? — is  the  true  question.  And  so  this  court  has 
been  in  the  habit  of  admitting  to  probate  such,  and  as  many  papers 
(all  properly  executed),  as  are  necessary  to  effect  the  testator's  full 
wishes,  and  of  solving  the  question  of  revocation  by  considering  not 
what  papers  have  been  apparently  superseded  by  the  act  of  executing 
others,  but  what  dispositions  it  can  be  collected  from  the  language  of 
all  the  papers  that  the  testator  designed  to  revoke  or  to  retain." 

That  being  the  principle  which  seems  to  me  applicable  to  the  present 
case,  I  do  not  feel  any  difficulty  in  arriving  at  a  decision  upon  it.  In 
my  opinion  all  three  documents  should  be  admitted  to  probate.  I  do 
not  think,  having  regard  to  the  circumstances  which  these  testamentary 
papers  disclose,  that  the  words  "last  and  only"  can  be  taken  as  re- 
voking what  had  been  done  by  the  previous  will. 

The  document  which  contains  the  words  in  question  is  a  printed 
form,  evidently  drawn  up  for  the  purpose  of  disposing  of  a  policy 
of  assurance  only  and  appointing  an  executor  to  deal  with  that  mat- 
ter only.  It  is  very  unfortunate  that  it  should  have  been  drawn  in 
this  way,  but  it  is,  notwithstanding  the  words  "and  only,"  not  in- 
tended to  be  a  complete  disposition  of  the  testator's  property. 

If  the  other  view  were  adopted  it  would  lead  to  this,  that  apart  from 
the  insurance  money,  the  whole  of  this  man's  property  would  remain 
undealt  with,  except  as  to  what  is  disposed  of  by  the  codicil,  although 
the  testator  cannot  possibly  have  had  any  idea  that  he  had  not  dis- 
posed or  was  not  disposing  of-  all  that  he  could  have  dealt  with. 

The  words  "last  and  only"  cannot  be  treated  as  an  express  revoca- 
tion ;  and,  applying  the  principles  I  have  already  referred  to,  the  dis- 
positions of  this  man's  property  seem  to  me  to  show  that  the  document 
in  question  was  not  intended  by  him  to  be,  and  it  is  not,  upon  its  face, 
a  controlling  and  revoking  disposition.  In  other  words,  neither  by  ex- 
press intention  nor  by  disposition  of  property  can  you  gather  that 


Ch.  7)  THE   REVOCATION   OP  WILLS.  241 

the  words  "and  only"  are  to  be  treated  as  a  revocation  of  the  earlier 
will. 

I  grant  probate  of  all  three  documents.^'    The  costs  must,  of  course, 
come  out  of  the  estate. 


SECTION  3.— REVOCATION  BY  BURNING,  TEARING,  CAN 
CELING.  OBLITERATING.  MUTILATING,  OR  OTHER- 
WISE DESTROYING 


CHEESE  V.  LOVEJOY. 

(Court  of  Appeal,  1876.     2  P.  D.  251.) 

This  was  an  action  to  obtain  probate  in  solemn  form  of  the  will, 
dated  the  3d  of  July,  1849,  of  John  Harris,  who  died  on  the  13th  of 
May,  1876,  with  three  codicils,  one  dated  the  3d  of  July,  1849,  and 
the  two  others  the  21st  of  September,  excluding  from  the  probate 
all  the  alterations  and  interlineations  appearing  on  the  will. 

That  those  instruments  were  originally  well  executed  was  not  seri 
ously  contested.     The  plaintiff  under  the  will  was  a  beneficial  legate 
of  a  considerable  part  of  the  testator's  personal  estate  and  a  devises', 
of  a  considerable  part  of  his  freehold  estate.     The  heir  at  law  and 
next  of  kin  contended  that  the  testamentary  instruments  had  been  re- 
voked. 

The  evidence  as  to  revocation  was  to  the  following  effect :  The  will 
and  codicils  were  at  the  testator's  death  found  upon  the  kitchen  table. 
The  testator  had  drawn  a  pen  through  the  lines  of  some  part  of  the 
will,  leaving  the  words  perfectly  legible,  and  had  written  on  the  back, 
"All  these  are  revoked."     A  housekeeper,  who  had  been  nine  years 

IS  On  the  other  hand,  It  seems  that  a  later  will,  which  does  not  contain  an 
express  revocation  clause  and  does  not  dispose  of  the  residue  of  testator's 
estate,  may  wholly  revoke  by  implication  earlier  testamentary  documents 
which  disposed  of  the  whole  estate.  See  In  the  Estate  of  Ann  Faith  Bryan, 
[1902]  P.  125. 

"Where  a  second  instrument  is  a  will,  as  distingnished  from  a  codicil,  the 
courts  do  not  make  so  great  an  effort  to  reconcile  it  with  the  former  will 
as  they  do  in  the  case  of  a  codicil.  The  reason  for  this  distinction  lies  in 
the  fact  that  a  codicil  is  ordinarily  intended  merely  to  effect  some  altera- 
tion in  the  will,  leaving  the  rest  of  it  in  force;  while  a  later  will  may  quite 
as  well  be  intended  to  dispose  of  testator's  property  in  disregard  of  the  for- 
mer will."     Page  on  Wills.  §  269,  p.  300. 

\^^ae^e  several  papers  together  constitute  the  last  will,  several  sets  of  ex- 
ecutors may  be  entitled  to  letters.  For  a  case  of  that  kind,  see  In  the  Goods 
of  Strahan,  [1907]  2  Ir.  484. 

Note.  On  the  pro  tanto  revocation  of  a  hologi*aphic  will  by  holographic 
Interlineations  and  alterations,  see  La  Faie  v.  Lee,  63  W.  Va.  3S8,  60  S.  E, 
388,  14  L.  R.  A.  (N.  S.)  968  (1908),  quoted  from  in  note  1  to  Milam  v.  Stan- 
ley, ante,  p.  94. 

Cost.  Wills— 16 


242  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

with  the  testator  and  left  in  January,  1876,  stated  that  she  had  heard 
the  testator  speak  about  his  wills,  and  say  he  had  made  two  or  three; 
but  that  he  had  cancelled  them  and  they  were  good  for  nothing,  and 
that  the  testator  had  in  her  presence  taken  up  this  will  and  thrown  it 
among  a  heap  of  waste  papers  on  the  floor.  The  housemaid  deposed 
that  she  had  first  seen  the  document  about  eleven  years  ago  in  the  tes- 
tator's sitting  room  under  the  cushion  on  the  sofa.  That  about  seven 
or  eight  years  ago  the  testator  kicked  it  into  a  corner  of  the  sitting 
room  among 'a  quantity  of  other  papers,  and  that  she  took  it  out  of 
the  sitting  room,  where  it  was  lying  by  the  coal  box  along  with  other 
scraps  of  paper,  and  took  it  into  the  kitchen,  where  she  put  it  on  the 
table.  That  it  was  sometimes  on  the  table,  sometimes  on  the  kitchen 
window,  and  sometimes  on  a  chair,  just  where  she  chose  to  put  it, 
but  the  testator  never  asked  for  it,  nor  was  it  produced  to  him  again. 

The  judge,  being  of  opinion  that  there  was  no  evidence  of  revoca- 
tion within  the  20th  section  of  the  Wills  Act,  directed  the  jury  to  find 
a  verdict  for  the  plaintiff.  The  principal  defendants  excepted  to  this 
ruling  in  order  to  bring  the  case  before  the  Court  of  Appeal. 

James,  L.  J.  We  cannot  allow  the  appeal  in  this  case.  It  is  quite 
clear  that  a  symbolical  burning  will  not  do,  a  symbolical  tearing  will 
not  do,  nor  will  a  symbolical  destruction.  There  must  be  the  act  as 
well  as  the  intention.  As  it  was  put  by  Dr.  Deane  in  the  court  b?low : 
"All  the  destroying  in  the  world  without  intention  will  not  revoke  a 
will,  nor  all  the  intention  in  the  world  without  destroying;  there  must 
be  the  two."  • 

BAGGALLAY  and  COTTON,  L.  JJ.,  concurred. 


DOE  d.  REED  v.  HARRIS. 

(King's  Bench,  1837.    6  A.  &  E.  209.) 

EjectmenMor  freehold  lands.  The  lessor  of  the  plaintiff  claimed 
as  the  son  and  heir  at  law  of  John  Reed  and  the  defendant,  the  niece 
of  John  Reed,  claimed  as  his  devisee.  The  testator  was  an  old  and  in- 
firm man  and  the  defendant  lived  with  him  as  his  housekeeper.  While 
she  exercised  great  influence  over  him  they  had  frequent  quarrels. 
The  testimony  of  one  Esther  Treharne,  the  testator's  servant,  was  that 
the  testator  threw  the  will  on  the  fire,  but  that  the  devisee  "scramped" 
it  off;  that  the  next  morning  the  devisee  pretended  to  burn  the  will  in 
the  testator's  presence ;  and  that,  on  being  told  by  the  witness  that  the 
latter  doubted  the  burning  of  the  will,  the  testator  declared  he  would 
make  another.  The  devisee  swore  that  the  day  after  the  testator  died 
she  found  the  will  in  a  trunk  used  by  the  testator  for  holding  his  deeds 
and  papers.  The  will  produced  on  the  trial  had  no  mark  of  fire  and 
it  did  not  appear  that  any  envelope  had  been  found  upon  it. 

The  plaintiff's  counsel  contended,  first,  that  the  testator  had  been 


Ch,   7)  THE  REVOCATION  OF  WILLS.  243 

prevailed  upon  to  execute  the  will  by  importunities  of  such  a  nature 
as  to  deprive  him  of  his  free  agency;  and,  secondly,  that,  assuming 
the  will  to  have  been  properly  executed,  the  evidence  showed  a  cancel- 
lation within  the  Statute  of  Frauds,  29  Car.  II,  c.  3,  §  6.  The  learned 
judge  stated  to  the  jury,  on  the  latter  point,  that,  if  they  believed  the 
evidence  of  Esther  Treharne,  and  were  satisfied  that  the  testator  threw 
the  will  on  the  fire  intending  to  burn  it,  that  Alice  Harris  took  it  off 
against  his  will,  that  he  afterwards  insisted  on  its  being  thrown  on 
the  fire  again,  with  intent  that  it  should  be  burned,  and  that  she  then 
promised  to  burn  it,  there  was  a  sufficient  cancellation  within  the  stat- 
ute. The  jury  found'  for  the  plaintiff,  not  stating  the  grounds  of  their 
verdict.  In  the  ensuing  term  a  rule  nisi  was  obtained  for  a  new  trial, 
on  account  of  misdirection  on  the  two  points  above  stated.  It  was 
also  objected  that  the  evidence  of  cancellation  was  not  of  a  proper 
kind ;  the  fact  being  proved  only  by  declarations,  and  not  by  the  tes- 
timony of  eye-witnesses,  or  by  marks  of  cancellation  on  the  will  it- 
self.i* 

Lord  Denman,  C.  J.  The  Statute  of  Frauds  requires  that  a  will 
shall  be  executed  with  certain  solemnities ;  and,  after  prescribing 
these,  directs  how  it  shall  be  revoked ;  and  that  is  by  certain  acts,  which 
are  specified.  In  the  present  case,  there  is  no  evidence  that  any  one 
of  those  acts  has  been  done.  It  is  impossible  to  say  that  singeing  a 
cover  is  burning  a  will  within  the  meaning  of  the  statute.  The  terms 
used  in  the  sixth  section  show  that  to  assert  this  would  be  going  a 
length  not  contemplated  in  the  statute.  The  acts  required  are  pal- 
pable and  visible  ones.  Cases  may,  indeed,  be  put  where  very  little 
has  been  done,  as  a  slight  tearing  and  burning,  and  yet  a  revocation 
has  taken  place;  but  the  main  current  of  the  statute  is  against  the 
argument  from  such  cases.  The  intention  seems  to  have  been  to  pre- 
vent inferences  being  drawn  from  such  slight  circumstances. 

In  Bibb  dem.  Mole  v.  Thomas,  2  W.  Bl.  1043,  the  will  was  slightly 
torn  and  slightly  burned :  and  the  court  said  that  the  case  fell  withm 
two  of  the  specific  acts  described  by  the  statute;  there  was  both  a 
burning  and  a  tearing.  Doubt  might  be  entertained  now  whether  the 
proof  there  given  would  be  sufficient  as  to  these;  but,  as  the  court 
considered  what  was  done  to  have  been  a  burning  and  a  tearing,  the 
case  shows  at  least  that  they  did  not  think  the  acts  required  by  the 
statute  could  be  dispensed  with  by  reason  of  the  conduct  of  a  third 
party.  In  Doe  dem.  Perkes  v.  Perkes,  3  B.  &  Aid.  489  (S.  E.  C.  L. 
R.  353)  the  testator's  hand  was  arrested  while  he  was  in  the  act  of 
tearing  the  will :  he  submitted  to  the  interference ;  and  the  intention 
of  revoking  w,as  itself  revoked  before  the  act  was  complete.  There 
it  was  properly  left  to  the  jury  to  say  whether  the  testator  had  done 
all  he  intended  or  not. 

1*  The  statement  of  facts  is  rewritten  and  abbreviated. 


244  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

Neither  of  these  cases  at  all  approaches  the  present.  It  would  be 
a  violence  to  language,  if  we  said  here  that  there  was  any  evidence 
to  go  to  the  jury  of  the  will  having  been  burned.  Great  inconvenience 
would  be  introduced  by  holding  that  there  may  be  a  virtual  compliance 
with  the  statute;  but  there  is  none  in  saying  that,  if  a  testator  per- 
severes in  the  intention  of  revoking  his  will,  he  shall  fulfil  it  by  some 
of  the  means  pointed  out  in  the  statute ;  that  he  shall  revoke  the  will, 
if  not  in  his  possession,  by  writing  properly  attested ;  or  cancel  it,  if  in 
his  power,  by  some  of  the  other  acts  which  the  statute  prescribes. 

Patteson,  J.  I  am  quite  satisfied  that  I  left  this  case  wrongly  to 
the  jury.  I  did  not  see  the  distinction  between  the  present  case  and 
Bibb  dem.  Mole  v.  Thomas,  2  W.  Bl.  1043,  as  I  ought.  There  some- 
thing had  been  done  which  the  court  considered  to  be  a  burning  and 
a  tearing  of  the  will.  The  testator  is  described,  not  as  having  merely 
doiie  something  to  the  corner  of  the  will,  but  as  having  given  it  "some- 
thing of  a  rip  with  his  hands,"  and  so  torn  it  "as  almost  to  tear  a  bit 
oflF."  It  is  plain  that,  on  the  production  of  the  instrument,  it  would  ap- 
pear (though  I  do  not  think  that  important)  that  there  had  been  some 
tearing  of  the  will  itself.  As  the  act  says  that  there  must  be  a  tear- 
ing or  burning  of  the  instrument  itself,  a  mere  singeing  of  the  corner 
of  an  envelope  is  not  sufficient.  To  hold  that  it  was  so  would  be  say- 
ing that  a  strong  intention  to  burn  was  a  burning.  There  must  be, 
at  all  events,  a  partial  burning  of  the  instrument  itself.  I  do  not  say 
that  a  quantity  of  words  must  be  burned;  but  there  must  be  a  burn- 
ing of  the  paper  on  which  the  will  is.  I  am  quite  satisfied  that  I  was 
wrong  in  my  direction  to  the  jury. 

Williams,  J.  We  must  give  effect  to  a  statute  as  providing  for 
cases  of  ordinary  occurrence,  and  not  for  any  that  may  be  put.  It 
is  argued  that,  if  a  testator  throws  his  will  on  the  fire  with  the  inten- 
tion of  destroying  *it,  and  some  one,  without  his  knowledge,  takes  it 
away,  that  is  a  fraud  which  ought  not  to  defeat  his  act.  But  so  it 
might  be  said  that,  if  the  testator  sent  a  person  to  throw  it  on  the 
fire,  and  he  did  not,  the  revocation  was  still  good.  Where  would  such 
constructions  end?  The  effect  of  them  would  be  to  defeat  the  object 
of  the  statute,  which  was  to  prevent  the  proof  of  a  cancellation  from 
depending  on  parol  evidence.  The  will  must  be  torn  or  burned ;  and 
the  question  will  always  be  whether  that  was  done  with  intention  to 
cancel:  how  much  should  be  burned,  or.  whether  the  will  should  be 
torn  into  more  or  fewer  pieces,  it  is  not  necessary  to  lay  down. 

Coleridge,  J.  The  kind  of  construction  which  has  been  insisted 
upon  would  lead  to  a  repeal  of  the  statute  on  this  subject,  step  by  step. 
The  statute,  for  wise  purposes,  does  not  leave  the  fact  of  cancellation 
'lo  depend  on  mere  intent,  but  requires  definite  acts.  In  the  making  of 
a  will,  if  the  proper  signatures  were  not  afiixed,  no  explanation  of  the 
want  of  signatures  could  be  received ;  and  so,  when  a  will  has  been 
made,  to  revoke  it,  there  must  be  some  act  coupled  with  the  intention 
of  revoking,  to  bring  the  case  within  the  sixth  section.     The  question 


Ch.   7)  THE  REVOCATION   OF   WILLS.  245 

is  put,  whether  the  will  must  be  destroyed  wholly,  or  to  what  extent? 
It  is  hardly  necessary  to  say;  but  there  must  be  such  an  injury  with 
intent  to  revoke  as  destroys  the  entirety  of  the  will,  because  it  may 
then  be  said  that  the  instrument  no  longer  exists  as  it  was.  Here  the 
fire  never  touched  the  will.  It  can  only  be  said  that  the  testator's  in- 
tention to  cancel  was  defeated  by  the  fraud  of  another  party.  But,  to 
instance  another  case  under  the  same  clause  of  the  statute,  suppose 
the  testator  had  written  his  revocation,  and  that,  by  the  act  of  some 
other  party,  he  had  been  prevented  from  signing,  or  the  witnesses  had 
been  prevented  from  attesting  it ;  could  it  be  said  that  the  testator  had 
done  all  that  lay  in  him,  and  therefore  the  act  of  revocation  was  com- 
plete? We  must  proceed  on  such  a  view  of  the  statute  as  accords 
with  common-sense.     Rule  absolute.^' 


GILES  V.  WARREN. 

(Court  of  Probate.  1872,  L.  R.  2  P.  &  D.  401.) 

Lord  Penzance.^*  I  think  in  this  case  there  was  no  revocation. 
The  fact  that  a  testator  tears  or  destroys  his  will  is  not  itself  sufficient 
to  revoke  one  properly  executed.  That  is  to  say,  the  bare  fact.  If, 
for  instance,  he  tears  it,  imagining  it  to  be  some  other  document,  there 
would  be  no  revocation,  for  there  would  be  no  animus  revocandi.  He 
must  intend  by  the  act  to  revoke  something  that  he  had  previously 
done.  There  can  be  no  intention  to  revoke  a  will,  if  a  person  destroys 
the  paper  under  the  idea,  whether  right  or  wrong,  that  it  is  not  a  valid 
will.  Revocation  is  a  term  applicable  to  the  case  of  a  person  cancelling 
or  destroying  a  document  which  he  had  before  legally  made.  He  does 
not  revoke  it  if  he  does  not  treat  it  as  being  valid  at  the  time  when  he 

18  See  White  v.  Casten,  46  N.  C.  197,  201,  59  Am.  Dec.  585  (1853),  where 
the  court  said :  "The  principle  which  we  would  extract  from  the  cases  cited, 
is  that,  where  the  revocation  of  a  will  is  attempted  by  burning,  there  must 
be  a  present  intent  on  the  part  of  the  testator  to  revoke,  and  this  intent  must 
appear  by  some  act  or  symbol,  appearing  on  the  script  itself,  so  that  it  may 
not  rest  upon  mei*e  parol  testimony,  and  if  the  script  is  in  any  part  burnt  or 
sin<?ed,  it  is  sufficient  to  revoke  the  will."  That  the  testator  is  deceived  into 
thinking  that  he  has  burned  up  the  will,  when  in  fact  it  remains  intact,  will 
not  enable  the  court  to  find  a  revocation.  Graham  v.  Burch,  47  Minn.  171, 
49  N.  W.  697.  28  Am.  St.  Rep.  339  (1891).  But  see  Pryor  v.  Coggin,  17  Ga. 
144  (1855).  In  Doe  d.  Reed  v.  Harris.  8  A.  &  E.  1  (1838),  between  the  same  par- 
ties as  in  the  principal  case,  it  appeared  that  the  paper  in  which  the  will  was 
wrapped  partially  burned  when  the  testator  threw  the  will  on  the  fire,  but 
that  the  will  itself  was  not  affected.  In  this  second  case,  however,  copyhold 
lands  were  sued  for,  and  as  the  Statute  of  Frauds  did  not  apply  to  them, 
and  as  in  consequence  a  revocation  at  common  law,  "which  only  requires  evi- 
dence of  intention,"  was  sufficient,  the  heir  at  law  recovered  the  copyholds. 
That  the  principal  case  was  correctly  decided  under  the  Statute  of  B'rauds 
provision  was  not  controverted.  On  revocation  at  common  law,  see  Brook 
V.  Warde,  ante,  p.  229,  and  Card  v.  Grinman,  5  Conn.  164  (1823). 

16  The  statement  of  facts  is  omitted. 


246  LAST   WILLS   AND   TESTAMENTS.  (Part   1 

sets  about  to  destroy  it.  According  to  the  evidence  the  testator,  in 
consequence  of  some  conversation  he  had  with  Hillstead,  was  under 
the  impression  that  he  had  made  no  vaHd  will,  and,  as  being  useless, 
he  tore  the  document  up  and  threw  it  on  the  fire.  That  is  no  revocation. 
What  happened  afterwards  was  not  material.  If  the  will  had  been 
once  revoked,  the  testator  could  not  set  it  up  again  by  subsequent  dec- 
larations.^^ 


DOE  d.  PERKES  V.  PERKES. 

(Court  of  King's  Bench,  1820.     3  B.  &  Aid.  489.) 

Ejectment  for  messuages  and  lands  in  the  parish  of  Walsall.  Plea, 
Not  guilty.  At  the  trial  before  Holroyd,  J.,  at  the  last  assizes  for  the 
county  of  Stafford,  it  was  admitted  that  the  lessor  of  the  plaintiff,  as 
the  brother  and  heir  at  law  of  one  Charles  Perkes,  deceased,  was  en- 
titled to  recover,  unless  the  defendants  could  establish  the  will  under 
which  they  claimed.  The  will  had  been  duly  executed  by  the  testator 
to  pass  real  property,  and  the  only  question  was,  whether  he  had  not 
revoked  it  by  tearing  it,  and  upon  that  point  it  was  proved  by  one 
Joseph  Worrall,  that  in  August,  1816,  the  testator,  having  had  some 
quarrel  with  one  of  the  parties  who  was  a  devisee  named  in  his  will, 
in  a  fit  of  passion,  took  his  will  out  of  his  desk,  and  said  to  Wor- 
rall :  "Jo6>  yo^^  shall  see  if  I  have  done  anything  for  the  rascal  or  not. 
I  have  made  him  a  gentleman."  He  then  began  to  tear  the  will,  and 
tore  it  twice  through ;  the  witness  then  laid  hold  of  his  arms  and  en- 
treated him  to  abate  his  passion.  The  devisee  then,  who  was  present, 
put  his  hands  together,  as  if  in  an  attitude  of  prayer,  and  said:  "Con- 
sider my  family.  I  beg  your  pardon  for  what  I  have  said.  Had  I 
been  worthy  to  have  known  what  had  been  done  for  me,  I  should  have 
been  satisfied."  Upon  this,  the  testator  became  calm,  and  the  witness 
let  loose  his  arms.  The  testator  then  folded  up  the  will,  and  put  it  in 
his  pocket,  and  afterwards  pulled  it  out  again,  and  said,  "It  is  a  good 
job  it  is  no  worse,"  and  after  fitting  the  pieces  together,  he  added, 
"There  is  nothing  ripped  that  will  be  any  signification  to  it."  The  will 
was  found  after  the  death  of  the  testator,  in  four  parts.     Upon  this 

17  See  Estate  of  Olnisteart.  122  Cal.  224,  229,  230,  54  Pae.  745  (1898).  That 
a  destruction  cannot  be  ratified,  so  as  to  make  it  a  revocation,  see  Clinijan 
V.  Mitcheltree,  31  Pa.  25  (18r.(!) ;  Mundy  v.  Mundy,  15  N.  J.  Eq.  200  (18.")S) ; 
Gill  V.  Gill,  [1909]  P.  157.  In  the  last  case  Bargrave  Deane,  J.,  said  that, 
"if  a  testator  under  such  circumstances  desired  that  the  act  of  destruction 
performed  without  his  authority  at  the  time  should  prevail,  he  had  it  in  his 
power  effectually  to  revoke  his  will  in  accordance  with  the  provisions  of  the 
Wills  Act.  He  could  either  execute  a  document  expressly  revoking  his  will, 
or  he  could  make  a  fresh  will  dealing  with  his  property  in  any  way  he 
chose.  In  the  present  instance,  so  far  from  doing  anytliing  of  the  sort,  the 
testator  always  treated  the  act  of  destruction  by  his  wife  rather  as  a  joke 
and  as  of  no  effect  in  law;  and  he  was  right."  Id.  IGl,  1G2.  But  see  Cutler 
V.  Cutler,  130  N.  C.  1,  40  S.  E.  G89.  57  L.  R.  A.  209,  89  Am.  St.  Rep.  854- 
(1902) ;    Parsons  v.  Balson,  129  Wis.  311,  109  N.  W.  13G  (190G). 


Ch.  7)  THE  REVOCATION  OF  WILLS.  247 

evidence,  the  learned  judge  left  it  to  the  jury  to  say  whether  the  testa- 
tor had  done  all  he  intended,  or  whether  he  was  not  prevented  from 
completing  the  act  of  destruction  he  intended.  The  jury  found  a  ver- 
dict for  the  defendants,  establishing  the  will ;   and  now 

W.  E.  Taunton  moved  for  a  new  trial. 

Abbott,  C.  J.  Upon  the  evidence,  it  appears,  in  the  present  case, 
that  the  testator,  being  moved  with  a  sudden  impulse  of  passion  against 
one  of  the  devisees  under  his  will,  conceived  the  intention  of  cancelling 
it,  and  of  accomplishing  that  object  by  tearing.  Having  torn  it  twice 
through,  but  before  he  had  completed  his  purpose,  his  arms  were  ar- 
rested by  a  bystander,  and  his  anger  mitigated  by  the  submission  of 
the  party  who  had  provoked  him ;  he  then  proceeded  no  farther,  and 
after  having  fitted  the  pieces  together,  and  found  that  no  material 
word  had  been  obliterated,  he  said,  "It  is  well  it  is  no  worse."  Now, 
if  the  cancellation  had  been  once  complete,  nothing  that  took  place 
afterwards  could  set  up  the  will.  But  it  was  a  question  for  the  jury 
to  determine  whether  the  act  of  cancellation  was  complete.  They  have 
found  that  it  was  not,  and  that  it  was  the  intention  of  the  testator,  if 
he  had  not  been  stopped,  to  have  done  more,  in  order  to  carry  his 
purpose  into  effect.     I  can  see  no  reason  to  think  that  verdict  wrong. 

Bayley,  J.  I  think  this  verdict  right.  If  the  testator  had  done  all 
that  he  originally  intended,  it  would  have  amounted  to  a  cancellation 
of  the  will;  and  nothing  that  afterwards  took  place  could  set  it  up 
again.  But  if  the  jury  were  satisfied  that  he  was  stopped  in  medio, 
then  the  act  not  having  been  completed  will  not  be  sufficient  to  destroy 
the  validity  of  the  will.  Suppose  a  person  having  an 'intention  to 
cancel  his  will  by  burning  it,  were  to  throw  it  on  the  fire,  and  upon 
a  sudden  change  of  purpose,  were  to  take  it  off  again,  it  could  not 
be  contended  that  it  was  a  cancellation.  So  here,  there  was  evidence 
from  whicli  a  change  of  purpose  before  the  completion  of  the  act, 
might  properly  be  inferred.  The  jury  have  drawn  that  inference,  and 
I  see  no  reason  to  disturb  the  verdict. 

HoLROYD,  J.  I  was  of  opinion,  at  the  trial,  that  if  the  act  of  tear- 
ing Was  completed  nothing  that  took  place  afterwards  was  sufficient 
to  set  up  the  will  again.  The  Statute  of  Frauds  says  "that  no  devise 
in  writing  of  lands  shall  be  revocable,  otherwise  than  by  some  other 
will,  or  by  burning,  cancelling,  tearing,  or  obliterating  the  same  by 
the  testator,"  etc.;  but,  in  order  to  effect  this,  the  act  of  tearing,  etc., 
must  be  complete.  I  left  it  to  the  jury  to  say,  whether  that  was  so, 
and  they  were  of  opinion,  that  the  testator  had  not  completed  the  act 
he  had  intended,  and  I  thought  that  they  drew  the  right  conclusion 
from  the  evidence. 

Best,  J.  I  am  of  opinion,  that  the  verdict  is  right.  Tearing  is  one 
of  the  modes  by  which  a  will  may  be  cancelled ;  but  it  cannot  be  con- 
tendea  that  every  tearing  is  a  cancellation :  for  if  it  were,  a  testator, 
who  took  his  will  into  his  hands  with  intent  to  tear  it,  must,  if  he 
should  tear  it  in  the  smallest  degree  and  then  stop,  be  considered  as 


248  LAST   WILLS  AND  TESTAMENTS.  (Part   1 

having  cancelled  it.  The  real  question  in  these  cases  is,  whether  the 
act  be  complete.  If  the  testator  here,  after  tearing  it  twice  through, 
had  thrown  the  fragments  on  the  ground,  it  might  have  been  properly 
considered,  that  he  intended  to  go  no  farther,  and  that  the  cancellation 
was  complete;  but  here  there  is  evidence,  that  he  intended  to  go  far- 
ther, and  that  he  was  only  stopped  from  proceeding  by  an  appeal  made 
to  his  compassion  by  the  person  who  was  one  of  the  objects  of  his 
bounty.  The  case  in  Blackstone  is  very  distinguishable;  for  there  the 
testator  completed  his  purpose,  although  the  will  was  not  destroyed. 
I  see  no  reason,  therefore,  for  disturbing  the  verdict 
Rule  refused.^® 


In  re  GOODS  OF  MORTON. 
Court  of  Justice,  Probate  Division.  1887.    L.  R.  12  P.  D.  141.)  ^ 

Henrietta  G.  Morton,  late  of  Newcastle-on-Tyne,  deceased,  died  Jan- 
uary 26,  1887,  having  duly  executed  a  last  will,  bearing  date  Septem- 
ber 16,  1853.  After  her  death  the  will,  which  had  remained  in  her 
possession,  was  found  in  a  trunk  with  the  signatures  of  the  testatrix 
and  the  attesting  witnesses  scratched  out  as  if  with  a  penknife.  At 
the  bottom  of  the  will  there  was  a  memorandum  in  the  handwriting 
of  the  deceased,  dated  "November,  Saturday,  1861,"  but  not  executed, 
whereby  for  reasons  given  the  will  was  declared  to  be  canceled. 

Searle,  moved  for  a  grant  of  administration  to  Sarah  Francis  Mor- 
ton, the  sole  surviving  sister  and  next  of  kin  of  deceased,  as  in  case 
of  intestacy. 

Butt,  J.  I  do  not  think  there  is  any  difficulty  in  the  case.  What 
the  testatrix  did  may  be  regarded  as  a  lateral  cutting  out.  The  paper 
is  not  pierced,  but  the  signatures  are  scratched  away.  I  think  the  will 
has  been  revoked,  and  I  grant  administration  to  the  applicant^* 

18  See  Elms  v.  Elms,  1  Sw.  &  Tr.  155  (1858). 

10  Id  ITobbs  v.  Knight,  1  Curt.  768  (18?.8),  where  It  was  held  that  by  cut- 
ting out  his  signature  to  the  will  with  the  intent  to  revoke,  the  testator 
thereby  revoked  his  will  either  by  tearing  or  by  destroying  it  within  the 
meaning  of  the  Wills  Act,  the  court  (Sir  Herbert  Jenner)  said:  "The  sig- 
nature of  the  testator  being,  as  I  before  said,  an  essential  part  of  a  will, 
It  is  difficult  to  comprehend  when  that  which  is  essential  to  the  existence  of 
a  thing,  is  destroyed,  how  the  thing  itself  can  exist.  There  can  be  no  doubt 
that  if  the  name  of  the  testator  had  been  burned  or  torn  out,  the  revocation 
would  have  been  as  complete  as  if  the  will  had  been  torn  into  twenty  pieces. 
If  this  were  not  the  case,  it  would  lead  to  many  absurd  consequences.  But 
it  has  been  argued,  that  as  the  present  act  of  Parliament  has  pointed  out 
certain  modes  with  regard  to  the  revocation  of  wills,  the  court  cannot  go 
beyond  the  express  terms  of  the  act;  that  the  words  being  confined  to  burn- 
ing, tearing,  or  otherwise  destroying,  omitting  the  terms  'obliterating'  and 
'canceling'  used  in  the  Statute  of  Frauds;  there  must  l>e  an  actual  burning 
or  tearing,  or  as  to  'otherwise  destroying',  that  the  whole  Instrument  must 
be  destroyed;  that  the  cutting,  in  the  present  case,  is  not  tearing — (burn- 
ing is  out  of  the  question) — and  the  instrument  not  being  destroyed,  that 
there  Is  no  revocation ;    and  upon  this  part  of  the  argument,  the  case  of  Doe 


Ch.   7)  THE   REVOCATION   OF  WILLS.  249 

GAY  V.  GAY. 
{Supreme  Court  of  Iowa,  1882.    60  Iowa,  415,  14  N.  W.  238.  46  Am.  Rep.  78.) 

This  is  a  proceeding  at  law  to  set  aside  the  probate  of  a  will  of 
Harvey  D.  Gay.  The  petition  alleges  that  the  instrument  in  question 
was  at  one  time  the  last  will  of  Harvey  D.  Gay,  but  that  during  his 
life-time  he  destroyed  it  by  crossing  his  name,  and  by  cutting  and  tear- 
ing the  same  with  intent  to  revoke  and  destroy  the  will,  and  that  since 
that  time  it  has  not  been  of  any  force  or  validity.  The  cause  was  tried 
to  a  jury,  and  the  court  directed  them  to  find  that  the  will  was  not  re- 
voked.   The  plaintiff  appeals. 

Day,  J.  Harvey  D.  Gay  died  in  July,  1878.  Some  time  after  his 
death  his  widow,  Virginia  Gay,  discovered  a  package  of  papers  in  the 
secretary  in  the  back  parlor.  Soon  thereafter  she  gave  the  papers  to 
Mr.  Hawkins,  the  administrator  of  the  estate.    About  the  last  of  Au- 

dem.  Reed  v.  Harris,  6  A'd.  &  Ell.  209,  1  Nev.  &  P.  405,  In  the  Queen's  Bench, 
was  referred  to,  in  which  the  testator  had  thrown  his  will  on  the  fire,  with 
the  intention  of  destroying  it,  and  a  part  of  the  cover  was  burnt,  but  there 
being  no  burning  on  the  instrument  itself,  the  judges  of  that  court  held  that 
the  will  was  not  revoked;  that  the  words  of  the  Statute  of  Frauds  had  not 
been  complied  with.  But  that  case  is  not  applicable  to  the  present  point,  for 
here  a  part  of  the  will,  the  most  essential  part,  is  removed,  and  if  in  that 
case  the  name  of  the  testator  had  been  burned  or  torn  off,  I  think  the 
Court  of  Queen's  Bench  would  have  held  that  to  be  an  effectual  revocation 
by  burning  or  tearing,  for,  according  to  the  judgment  in  that  case,  it  was 
not  required  that  the  whole  will  should  be  burned  or  torn.  The  learned 
judges  do  not  say  how  much  it  is  necessary  should  be  burned,  but  Mr.  Jus- 
tice Coleridge  says  it  is  sufficient,  if  the  entirety  of  the  will  is  destroyed; 
his  expressions  are  these :  'We  were  pressed  with  the  argument :  Must  the 
whole  of  the  docvunent  be  destroyed?  I  say  no;  but  there  must  be  a  de- 
struction of  so  much  as  to  impair  the  entirety  of  the  will,  so  that  it  may  be 
said  that  the  will  does  not  exist  in  the  manner  framed  by  the  testator.'  So 
I  say  here,  Is  not  the  entirety  of  the  will  destroyed  by  the  removal  of  the 
signature  of  the  testator?.  It  is  true  this  is  not  an  act  of  tearing,  in  the 
strict  sense  of  that  term ;  but,  if  the  circumstances  of  this  case  required  it,  I 
think  it  would  not  be  difiicult  to  show  that  a  will  might  be  revoked  by  cutting 
with  an  instrument  as  well  as  by  tearing,  if  a  corresponding  effect  be  produc- 
ed by  the  one  act  as  by  the  other.  The  Latin  equivalent  for  the  verb  'to  tear,' 
is  lacerare,  but  I  find,  upon  looking  into  the  dictionaries,  that  exscindere,  'to 
cut  out,'  is  also  used  in  the  sense  of  'to  tear,'  and  Cicero  uses  the  phrase 
'exscindere  epistolam'  (which  is  remarkable),  with  regard  to  the  destruction 
of  a  document.  But  it  is  unnecessary  to  enter  further  into  the  consideration 
of  this  point,  for,  consistently  with  the  true  construction  of  the  act  of  Par- 
liament, and  the  decision  of  the  learned  judges  of  the  Court  of  Queen's 
Bench,  it  is  not  necessary,  in  order  to  bring  the  act  within  the  meaning  of 
the  words  'otherwise  destroying,'  that  the  material  of  the  will  should  be  de- 
stroyed ;  it  l9  sufficient,  as  it  appears  to  me.  if  the  essence  of  the  instrument 
(not  the  material)  be  destroyed.  Suppose  a  will  to  be  written  in  pencil,  and 
the  words  were  removed  by  means  of  Indian  rubber;  could  there  be  any 
doubt  that  that  would  be  a  sufficient  revocation?  Cutting  Is  a  mode  of  de- 
stroying as  effectual  as  tearing,  and  it  appears  to  me  that  if  tearing  a  will 
to  this  extent  be  a  sufficient  destruction  of  it,  the  same  effect  must  be  at- 
tributed to  the  act  of  cutting  it;  what  would  be  the  consequences  of  a  dif- 
ferent construction?  Suppose  a  will  were  torn  into  two  or  more  pieces,  the 
will,  no  doubt,  would  be  revoked;  but  if  it  were  cut  into  twenty  pieces  with 
A  knife,  that  would  be  no  revocation,  and  if  the  pieces  could  be  collected  and 


250  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

gust,  1880,  the  administrator,  in  looking  over  these  papers,  which  con- 
sisted chiefly  of  canceled  mortgages,  found  the  paper  in  question,  pur- 
porting to  be  the  last  will  of  Harvey  D.  Gay.  When  found,  two 
scrolls  were  drawn  with  a  pen  lengthwise  along  the  signature,  but  not 
in  such  manner  as  to  obliterate  it  or  render  it  illegible.  The  will  was 
then  filed  in  the  office  of  the  clerk  of  the  circuit  court  for  the  purpose 
of  probating  it.  Some  time  thereafter  the  deputy  clerk,  in  unfolding 
the  will,  tore  the  right-hand  margin  to  the  depth  of  one-eighth  or  one- 
fourth  of  an  inch.  This  tear  communicated  with  and  opened  a  cut 
just  over  the  signature,  about  two  or  three  inches  in  length.  When 
this  cut  was  made  does  not  satisfactorily  appear,  but  the  evidence 
shows  that  it  was  not  made  entirely  through  the  paper,  and  that  it  was 
not  visible  until  it  was  opened  by  the  deputy  clerk. 

1,  The  determination  of  the  question  involved  will  be  greatly  facili- 
tated by  considering  the  state  of  the  law  upon  the  subject  prior  to  the 
adoption  of  the  statute  under  which  the  question  arises.     By  the  sixth 

pasted  together,  the  will  must  be  pronounced  for  by  the  court.  I  cannot  con- 
ceive it  possible  that  it  was  the  intention  of  the  Legislature  to  leave  the  law 
in  that  state.  The  question  then  comes  to  this:  whether  this  be  or  be  not 
a  destruction  of  the  will.  I  consider  the  name  of  the  testator  to  be  essen- 
tial to  the  existence  of  a  will,  and  that  if  that  name  be  removed,  the  es- 
sential part  of  the  will  is  removed  and  the  will  is  destroyed;  otherwise  the 
statute  does  certainly  not  deserve  the  title  it  bears,  namely,  'An  act  to  amend 
the  laws  with  respect  to  wills.'  It  was  said  in  the  argument  (perhaps  it  is 
not  very  material)  that  a  will  cannot  now  be  revoked  by  obliteration,  the 
term  'obliteration'  having  been  advisedly  omitted  by  the  Legislature;  but  I 
am  not  prepared  to  say  (although  I  now  merely  throw  this  out)  that  a  will 
may  not  be  revoked  in  that  way,  for  I  see  no  reason  why,  if  the  obliteration 
amount  to  a  destruction  of  the  will  (that  is,  if  the  name  of  the  testator,  which 
is  essential  to  a  will,  be  so  obliterated  that  it  cannot  be  made  out),  a  will 
may  not  be  revoked  in  that  way  as  well  as  any  other.  Suppose  a  testator 
had  so  obliterated  his  name  from  a  will  as  to  render  it  Impossible  to  make 
it  out,  and  I  am  not  at  liberty  to  supply  it  by  evidence  aliunde,  how  would 
this  operate  with  respect  to  the  21st  clause  of  the  act,  which  enacts,  'that 
no  obliteration,  interlineation,  or  other  alteration,  made  in  any  will  after  the 
execution  thereof  shall  be  valid,  or  have  any  effect,  except  so  far  as  the 
words,  or  effect  of  the  will  before  such  alteration,  shall  not  be  apparent'? 
By  this  clause,  as  I  understand  it,  where  words  are  so  obliterated  that  they 
do  not  appear,  it  is  a  good  revocation  pro  tanto.  Would  not  the  same  rule 
be  applied  with  respect  to  the  name  of  the  testator?  I  think  that  it  was  the 
intention  of  the  Legislature  that  it  should  be  sufficient  if  the  name  of  the 
testator  was  so  obliterated  that  It  could  not  be  made  out;  it  never  could  be 
intended  that  a  testator  might  revoke  his  will  pro  tanto,  and  yet  not  be  at 
liberty  to  revoke  the  whole  will."  The  court  also  expressed  the  opinion  that 
"If  the  names  of  the  attesting  witnesses  were  erased  by  the  testator  animo 
revocandi,  it  would  be  a  sufficient  revocation.  It  might  be  difficult  to  make 
it  appear  that  the  names  of  the  witnesses  were  erased  animo  revocandi ; 
but  if  it  could  appear,  I  should  be  of  opinion  that  it  would  amount  to  a  de- 
struction of  the  will,  within  the  meaning  of  the  act  of  Parliament.  I  do  not 
think  that  the  words  'otherwise  destroying'  mean  that  the  material  of  the 
will  must  be  destroyed,  but  that  it  must  be  something  which  would  amount 
to  a  destruction  of  the  will  itself."  That  tearing  off  a  seal  to  revoke  is  a 
revocation,  see  Price  v.  Powell,  3  H.  &  N.  341  (1858).  Merely  removing  pina 
which  fasten  the  sheets  of  the  will  together,  without  otherwise  injuring  the 
sheets,  is  held  not  to  be  a  tearing.  Woodruff  v.  Hundley,  127  Ala.  640,  29 
South.  98,  85  Am.  St.  Rep.  145  (1900). 


"Ch.  7)  THE   REVOCATION   OF  WILLS.  251 

section  of  the  statute  of  frauds  (29  Car.  II,  c.  3)  it  is  provided  that 
the  revocation  of  a  will  by  injury  to  the  instrument  itself  can  be  ef- 
fected only  "by  burning,  canceling,  tearing,  or  obliterating  the  same 
by  the  testator  himself,  or  in  his  presence,  and  by  his  direction  and 
consent."  Under  this  statute  it  was  held  that  to  constitute  a  revoca- 
tion of  a  will  by  burning  there  must  at  least  be  a  burning  of  a  part 
of  the  paper  on  which  the  will  is  (Reed  v.  Harris,  8  Adol.  &  E.  1), 
and  that  a  very  slight  act  of  tearing  and  burning  is  sufficient  to  effect 
a  revocation,  if  done  with  such  intention  (Mole  v.  Thomas,  2  W.  Bl. 
1043) ;  that  when  a  pencil,  instead  of  a  pen,  is  used  for  cancellation, 
the  revocation  is  not  necessarily  ineffectual,  and  it  may  be  shown  that 
it  was  intended  to  be  final  (IMence  v.  Mence,  18  Ves.  348;  Frances  v. 
Grover,  5  Hare,  39) ;  and  that,  in  order  to  constitute  a  revocation  by 
obliteration,  it  is  not  essential  that  every  word  shall  be  obliterated,  the 
revocation  being  complete  if  enough  of  the  material  part  be  expunged 
to  show  an  intention  that  the  devise  shall  not  stand,  as  where  the  tes- 
tator draws  his  pen  across  the  devisee's  name  (Mence  v.  Mence,  18 
Ves.  350;   1  Jarman,  Wills,  129-135). 

The  act  1  Vict.  c.  26,  provides  that  the  revocation  of  a  will,  by  in- 
jury to  the  instrument  itself,  shall  be  only  "by  the  burning,  tearing,  or 
otherwise  destroying  the  same  by  the  testator,  or  by  some  person  in  his 
presence,  and  by  his  direction,  with  the  intention  of  revoking  the 
same."  This  statute,  it  is  to  be  observed,  omits  the  words  "canceling 
or  obliterating,"  found  in  the  statute  of  frauds,  and  substitutes  there- 
for the  words  "otherwise  destroying."  Under  this  statute  it  has  been 
held  that  the  words  "otherwise  destroying"  are  to  be  taken  to  mean 
a  destruction  ejusdem  generis  with  the  modes  before  mentioned — 
that  is,  destruction,  in  the  proper  sense  of  the  word,  of  the  substance 
or  contents  of  the  will,  or  at  least  complete  effacement  of  the  writing, 
as  by  pasting  over  it  a  blank  paper  (Re  Horsford,  L.  R.  3  P.  &  D. 
211),  and  not  a  destroying  in  a  secondary  sense,  as  by  canceling  or 
incomplete  obliteration  (Stephens  v.  Taprell,  2  Curt.  458;  Hobbs  v. 
Knight,  1  Curt.  779)  ;  that  cancellation  and  obliteration,  unless  they 
prevent  the  words  as  originally  written  from  being  apparent  by  looking 
at  the  will  itself,  are  plainly  excluded  by  the  statute  (Re  Dyer,  5  Jur. 
1016  ;  Re  Fary,  15  Jur.  1114) ;  and  that  glasses  may  be  used  for  dis- 
covering what  the  words  obliterated  originally  were  (1  Jarman,  Wills, 
142,  and  cases  cited).  Chapter  162  of  the  Revised  Statutes  of  the 
territory  of  Iowa,  §  9,  respecting  the  revocation  of  a  will  by  injury  ^o 
the  instrument  cited,  provides  that  "no  will,  nor  any  part  thereof,  shall 
be  revoked  unless  by  burning,  tearing,  canceling,  or  obliterating  the 
same,  with  the  intention  of  revoking  it,  by  the  testator  himself,  or  by 
some  person  in  his  presence  and  by  his  direction."  This,  it  will  be 
observed,  is  identical  with  the  statute.    29  Car.  II,  c.  3. 

In  the  Code  of  1851  the  provisions  of  our  present  statute  were 
adopted  as  follows: 


252  LAST  WILLS  AND   TESTAMENTS.  (Part  1 

"Section  1288.  Wills  can  be  revoked,  in  whole  or  in  part,  only  by 
being  canceled  or  destroyed  by  the  act  or  direction  of  the  testator  with 
the  intention  of  so  revoking  them,  or  by  the  execution  of  subsequent 
wills. 

"Section  1289.  When  done  by  cancellation,  the  revocation  must  be 
witnessed  in  the  same  manner  as  the  making  of  a  new  will." 

Revision,  §§  2320,  2321;  Code  1873,  §§  2329,  2330. 

When  a  statute  provides  the  manner  in  which  a  will  may  be  revoked, 
that  manner  must  be  pursued.  Wright  v.  Wright,  5  Ind.  391 ;  Runkle 
V.  Gates,  11  Ind.  95;  Blanchard  v.  Blanchard,  32  Vt.  62;  Gains  v. 
Gains,  2  A.  K.  Marsh.  (Ky.)  190,  12  Am.  Dec.  375;  Clingan  v.  Mitch- 
eltree,  31  Pa.  25 ;  Reed  v.  Harris,  6  Adol.  &  E.  209.  Our  statute  pro- 
vides that  a  will  may  be  revoked,  in  whole  or  in  part— First,  by  being 
destroyed ;  second,  by  being  canceled — the  cancellation  being  witnessed 
in  the  same  manner  as  the  making  of  a  new  will.  If  the  scroll  drawn . 
over  the  name  of  the  testator  had  entirely  obliterated  the  signature, 
this  might  have  worked  a  destruction  of  the  will,  upon  the  ground 
that  it  had  destroyed  that  without  which  the  will  could  not  exist.  See 
Hobbs  V.  Knight,  1  Curt.  Ecc.  Rep.  768 ;  Price  v.  Powell,  3  Hurl.  & 
N.  341;  The  Goods  of  Harris,  3  Sw.  &  Tr.  485;  Goods  of  Gullan, 
1  Sw.  &  Tr.  23 ;  Goods  of  Coleman,  2  Sw.  &  Tr.  314.  In  this  case, 
however,  the  scrolls  drawn  across  the  signature  of  the  testator  do  not 
obliterate  it  nor  render  it  illegible.  They  do  not,  therefore,  constitute 
a  destruction  of  the  will.  See  Re  Dyer,  5  Jur.  1016;  Re  Fary,  15 
Jur.  1114;  Re  Brewster,  6  Jur.  (N.  S.)  56;  Lushington  v.  Onslow, 
12  Jur.  465 ;  Stephens  v.  Taprell,  2  Curt.  458 ;  Re  Beavan,  2  Curt. 
369 ;  Re  Ibbitson,  2  Curt.  337 ;  In  the  Goods  of  Horsford,  L.  R.  3  P. 
&  D.  211. 

It  is  insisted  by  the  appellant  that  as  the  statute  provides  for  the 
partial  revocation  of  a  will  by  its  being  destroyed,  the  word  "de- 
stroyed" cannot  mean  annihilated,  but  is  sufficiently  answered  by  what 
was  done  in  this  case.  It  is  apparent,  however,  that  there  may  be  a 
destruction  of  a  particular  part  of  a  will  by  erasure  or  complete  ob- 
literation; and  that,  admitting  that  "destroyed"  does  not,  as  used  in 
the  statute,  mean  annihilated,  it  does  not  follow  that  a  will  may  be 
destroyed  by  simply  drawing  a  scroll  through  the  signature.^  The 
most  that  can  be  said  for  what  was  done  in  the  present  case  is  that 
it  constitutes  a  cancellation  of  the  signature  not  rendering  it  illegible, 
and  as  it  was  not  witnessed  in  the  manner  required  by  section  2330  of 
the  Code,  it  is  inoperative.  The"  court  did  not  err  in  directing  a  ver- 
dict for  the  defendant. 

2.  The  plaintiff  introduced  as  a  witness  one  Paul  Carrell,  and  of- 
fered to  prove  by  him  that  in  the  early  part  of  1878  decedent  had  a 
conversation  with  the  witness  in  which  he  went  over  the  question  of 
his  property,  and  in  his  conversation,  referring  to  the  terms  of  what 
he  claimed  to  have  been  his  will,  said  that  he  had  destroyed  it ;  that 
the  law  would  make  a  proper  distribution  of  his  property  to  suit  him ; 


Ch.   7)  THE  REVOCATION   OF   WILLS.  253 

and  that  his  wife  would  now  get  under  the  law  what  she  would  have 
got  under  the  old  will,  and  that  he  had  destroyed  his  will  and  should 
not  make  another. 

The  plaintiff  also  introduced  one  Kennedy,  and  offered  to  prove  by 
him  that  he  had  a  conversation  with  Mr.  Gay,  about  two  weeks  prior 
to  his  death,  with  reference  to  the  disposition  of  his  property,  in  which 
he  said  that  he  had  destroyed  his  will;  that  he  had  made  a  will  at 
one  time,  but  had  since  destroyed  it;  that  at  the  time  he  made  his 
will  he  desired  his  wife  to  have  all  the  property  he  had ;  that  since 
that  time  his  property  had  more  than  doubled,  and  that  now,  if  he 
should  die,  his  wife  would  get  as  much  as  she  would  at  the  time  he 
made  his  will,  if  she  had  got  it  all;  that  he  did  not  propose  to  go 
back  on  his  mother ;  that  he  ought  to  do  something  for  her ;  and  that 
he  had  destroyed  his  will  and  should  not  make  another.  The  defend- 
ant objected  to  this  testimony,  and  the  objection  was  sustained.  The 
appellant  assigns  this  action  of  the  court  as  error.  The  statute  requires 
that  the  act  of  destruction  or  cancellation,  which  will  work  a  revoca- 
tion of  a  will,  must  be  done  with  the  intention  of  revoking  it.  When 
the  act  is  sufficient  to  work  a  revocation,  if  done  with  that  intent',  the 
declarations  of  the  testator  may  be  admissible  to  show  the  intent.  See 
Bibb  V.  Thomas,  2  W.  Bl.  1043;  Harring  v.  Allen,  25  Mich.  505; 
Lawyer  v.  Smith,  8  Mich.  411,  77  Am.  Dec.  460. 

When,  as  in  this  case,  however,  the  act  done  does  not  amount  to 
a  revocation,  the  declarations  of  the  testator  are  not  admissible  to  prove 
a  revocation.  Redf.  Wills,  331;  Staines  v.  Stewart,  8  Jur.  (N.  S.) 
440;  Waterman  v.  Whitney,  11  N.  Y.  157,  62  Am.  Dec.  71;  Shall- 
cross  V.  Palmer,  16  Q.  B.  747;  Jackson  v.  Kniffen,  2  Johns.  (N.  Y.) 
81,  3  Am.  Dec.  390. 

The  court  did  not  err  in  rejecting  the  proffered  testimony.  Af- 
firmed." 

«o  In  Townphend  v.  Howard,  86  Me.  285,  29  Atl.  1077  (1894)  the  court  said: 
"A  will  can  be  revoked  in  whole  or  in  part  by  cancellation  or  obliteration. 
Rev.  St.  c.  74,  §  3.  To  cancel  is  to  cross  out.  To  obliterate  is  to  blot  out. 
The  former  leaves  the  words  legible.  The  latter  leaves  the  words  illegible. 
By  either  method  a  will  can  be  legally  revoked  in  whole  or  in  part.  If 
that  which  is  essential  to,  the  validity  of  the  whole  is  canceled  or  obliterated, 
animo  revocandi,  the  whole  will  is  revoked.  If  only  a  single  clause  is  so 
canceled  or  obliterated,  then  that  clause  only  is  revoked.  And  such  can- 
cellation or  obliterations  are  as  effectual  when  made  with  a  pencil  as  when 
made  with  a  pen.  *  *  *  In  the  present  case,  the  signatures  of  the  tes- 
tator are  all  erased.  The  testator  had  signed  the  will  in  three  places,  at 
the  bottom  of  the  first  page,  at  the  bottom  of  the  second  page,  and  at  the 
end  of  the  will  on  the  third  page.*  These  signatures  are  all  erased  with  a 
lead  pencil ;  and  the  evidence  satisfies  us  that  they  were  erased  by  the  testa- 
tor himself,  animo  revocandi.  *  *  *  It  is  the  opinion  of  the  court,  upon 
the  whole  case,  *  *  *  that  the  will  offered  for  probate  be  disallowed."' 
On  pencil  erasures,  see,  also,  Hilyard  v.  Wood,  71  N.  J.  Eq.  214,  63  Atl.  7 
(1906);  In  re  Frothingham's  Will  (N.  J.  Prerog.)  71  Atl.  695  (1908);  Id.  (N 
J.)  74  Atl.  471  (1909) ;  Mclntyre  v.  Mclntyre,  120  Ga.  67,  47  S.  E.  501,  102  Am. 
St.  Rep.  71  (1904). 

In  Evans'  Appeal,  58  Pa.  238,  244  (1868),  the  court  said:  "It  is  true  we 
have  to  do  with  the  meaning  of  the  words  'canceling'  'obliterating'  and  'de- 


254  LAST  WILLS  AND  TESTAMENTS.  (Part  1 


In  re  KISSAM'S  WILL. 

(Surrogate's  Court,  Westchester  County,  1908.     59  Misc.  Rep.  307,  110  N.  Y. 

Supp.  158.) 

Millard,  S.  The  last  will  and  testament  of  Harriet  Kissam,  ex- 
ecuted and  attested  in  manner  prescribed  by  law,  has  been  presented 
for  probate.     It  is  accompanied  by  an  instrument  in  writing,  duly  ac- 

stroyiug'  as  used  by  the  Legislature,  but  there  is  nothing  in  the  statute  that 
requires  us  to  attach  to  them  any  unusual  signification.  Let  it  be  admitted 
that,  collocated  as  they  are,  we  are  required  to  consider  them  as  dettniug 
acts  of  a  similar  nature.  We  do.  All  are  acts  done  to  the  will  itself  and 
they  are  not  used  in  their  absolutely  literal  sense.  Even  burning  does  not 
mean  entire  consumption  by  fire.  *  *  *  Nor  is  obliteration,  as  meant  in 
the  act,  nothing  short  of  effacing  the  letters  of  the  will,  scratching  them 
out  or  blotting  them  so  completely  that  they  cannot  be  read.  A  line  drawn 
through  the  writing  is  doubtless  obliteration  though  it  may  leave  it  as 
legible  as  it  was  before.  So  the  destruction  spoken  of  is  not  necessarily  an- 
nihilation, or'  a  change  into  other  forms  of  matter.  Tearing  into  fragments 
is  unquestionably  destruction,  though  the  fragments  may  be  reunited.  All 
the  words  are  used  in  their  popular  sense,  and  thus  used  they  secure  the 
object  the  Legislature  had  in  view^,  a  complete  manifestation  of  an  executed 
Intention  to  repeal.  Each  word  is  expressive  by  an  act  done  to  the  paper  it- 
self a  mark  upon  it,  evincible  of  a  present  intent  that  it  shall  not  operate 
as  a  will  Revocation  by  cancellation  then  is  not  to  be  understood  to  mean 
exclusively  drawing  crossed  lines  upon  the  paper,  but  it  means  any  act  done 
to  it  which,  in  common  understanding,  is  regarded  as  cancellation  when  done 

to  any  other  instrument."  ,,or^o^    ^^  *■ 

In  Estate  of  Olmsted,  122  Cal.  224,  230,  54  Pae.  745,  746  (1898),  the  court 
said-  "One  of  the  recognized  modes  of  revoking  a  will  is  by  cancellation. 
In  its  primal  significance  the  word  means  a  lattice  work.  As  applied  to  wnt- 
in<-s  it  means  the  nullification  of  a  writing  by  drawing  upon  its  face  lines 
inutile  form  of  lattice  work  'crisscross.'  Usually  in  legal  as  well  as  m  com- 
mon acceptance  cancellation  is  accomplished  by  the  drawing  of  any  line  over 
or  across  words  with  -the  intent  to  nullify  them." 

In  Woodfill  V.  Patton,  76  Ind.  575,  40  Am.  Rep.  269  (1881),  where  the  stat- 
ute provided  "that  no  will  should  be  revoked  unless  the  testator  should  de- 
stroy or  mutilate  the  same,"  the  court  said:    "The  destruction  of  a  will  did 
not    at  common  law,  imply  a  ruin  of  the  paper  or  parchment  on  which  the 
words  were  written.     It  meant  taking  from  the  instrument  force  and  effect. 
*     *     *     We  think  the  erasure  of  the  testator's   signature,   designedly   and 
deliberately  made,  accompanied,  of  course,  by  the  intention  to  revoke,  must 
be  deemed  a  'destruction'  of  the  will.     It  is  not  necessary  that  there  should 
be  a  destruction,  in  a  literal  sense,  of  the  fabric  upon  which  the  words  of  the 
testator  are  written.     *     *     *     'Mutilate'  means  something  less  than  total  de- 
struction.    Mere  mutilation  of  a  will  would  not,  of  itself,  take  from  a  will  all 
legal   force.     A   mutilation,   however,   which   takes   from  the  instrument   an 
element   essential   to   its  validity,   would   have   the  effect   to  revoke   it.     To 
mutilate    in  the  sense  in  which  it  is  generally  used  by  law  writers  and  by 
judges,  means  to  render  impca-fect.     *.   *     *     Purposely  taking  from  a  will 
the  signature  of  the  testator  deprives  it  of  an  essential  part,  and  makes  it  so 
imperfect  as  that  it  loses  all  legal   force  and  effect.     The  manner  in  which 
the  nnitilation   or   destruction  is  effected  is   not  of   controlling  importance. 
If  the  signature  were  cut  or  torn  from  the  paper;    if  all  traces  were  re- 
moved by'  a  chemical  preparation,  there  would  be  no  room  for  controversy, 
it  would  plainly  be  a  mutilation  of  the  will.     It  cannot  be  any  the  less  a 
mutilation  if  the  signature  is  marked  out  with  pen,  pencil  or  other  imple- 
ment which  erases,  cancels  or  obliterates." 

On  the  burden  of  proof  in  regard  to  alterations  appearing  on  the  face  of 
the  will  see  17  L.  R.  A.  (N.  S.)  184,  note. 


Ch.   7)  THE   REVOCATION  OF   WILLS.  255 

knowledged,  executed  by  all  the  heirs  at  law,  and  next  of  kin  of  de- 
cedent, waiving  the  issuing  and  service  of  citation,  and  consenting  that 
will  be  admitted  to  probate.  It  appears  by  an  examination  of  the  will, 
which  is  typewritten,  that  a  part  of  the  second  clause  has  been  erased. 
The  statute  directs  that  the  surrogate  "before  admitting  a  will  to  pro- 
bate must  inquire  particularly  into  all  the  facts  and  circumstances,  and 
must  be  satisfied  of  the  genuineness  of  the  will  and  the  validity  of  its 
execution."  Code  Civ.  Proc.  §  2622;  Matter  of  Bartholick's  Will, 
141  N.  Y.  166,  172,  36  N.  E.  1. 

Inquiry  into  the  facts  and  circumstances  by  examination  of  two  cred- 
ible witnesses,  the  scrivener,  who  also  was  one  of  the  subscribing  wit- 
nesses, and  the  testatrix's  sister,  to  whom  testatrix  read  the  will  after 
it  was  executed,  clearly  and  distinctly  establishes  that,  at  the  time  of 
the  execution  and  attestation  of  the  will,  the  second  clause  thereof 
read,  "Second,  I  give  and  bequeath,  subject  to  said  life  estate,  to  Mrs. 
Lillian  Roome  and  Miss  May  A.  Husted,  of  Washington,  D.  C,  each, 
the  sum  of  five  thousand  (5,000)  dollars;"  and  that  thereafter  the  tes- 
tatrix altered  such  second  clause  by  erasing  the  words  "and  Miss  May 
A.  Husted"  and  the  word  "each." 

The  testatrix  could  not  by  such  erasure  alter  her  will.  It  is  pro- 
vided by  2  Rev.  St.  (1st  Ed.)  pt.  2,  c.  6,  tit.  1,  §  42,  that  "No  will  in 
writing,  nor  any  part  thereof  *  *  *  shall  be  revoked  or  altered, 
otherwise  than  by  some  other  will  in  writing,  or  some  other  writing 
of  the  testator,  declaring  such  revocation  or  alteration  and  executed 
with  the  same  formalities  with  which  the  will  itself  was  required  by 
law  to  be  executed."  The  effect  of  this  statutory  provision  is  to  pre- 
vent a  testator  from  altering  his  will,  otherwise  than  by  an  instrument 
executed  in  the  same  manner  as  required  to  give  it  effect  as  a  will. 
The  statute  has  surrounded  the  execution  of  testamentary  instruments 
with  certain  forms  and  ceremonies  as  a  shield  and  protection  against 
fraud  and  imposition,  and  the  purpose  of  such  precautionary  measures 
might  be  entirely  defeated,  if  held  only  to  the  original  execution,  leav- 
ing all  subsequent  alterations  to  be  made  without  such  protection. 
The  aim  of  the  statute  is  to  close  the  door  against  opportunities  of 
fraud  and  alterations  in  a  will  except  by  the  observance  of  the  same 
formalities  as  in  its  execution. 

In  Lovell  v.  Quitman,  88  N.  Y.  377,  42  Am.  Rep.  254,  it  appears 
that  after  will  was  executed,  the  testatrix  obliterated  clauses  numbered 
"2nd"  and  "4th"  with  intent  to  revoke  the  same.  Held,  that  the  ob- 
literation was  not  effectual  for  that  purpose,  and  that  the  will  remained 
in  full  force  and  effect  as  before.  In  Quinn  v.  Quinn,  1  Thomp.  & 
C.  437,  after  will  was  executed,  the  testator  made  alterations  by  erasing 
and  interlining.  Held,  that  the  testator  could  not  by  an  erasure  par- 
tially revoke  his  will,  and  that  will  should  be  probated  as  originally 
written.  In  Stevens  v.  Stevens,  6  Dem.  Sur.  262,  3  N.  Y.  Supp.  131, 
the  testatrix,  after  the  execution  of  her  will,  attempted  to  alter  it  by 
having  a  bequest  written  on  a  separate  piece  of  paper  and  pasted  on 


256  LAST   WILLS   AND  TESTAMENTS.  (Part  1 

the  will,  cutting  the  latter  in  two  for  that  purpose.  Held,  that  the  at- 
tempted bequest  was  ineffectual,  and  that  the  original  will  was  not  ren- 
dered invalid.  In  Matter  of  Carver's  Estate,  3  Misc.  Rep.  567,  23  N. 
Y.  Supp.  753,  it  was  held  that  the  effect  of  an  unauthenticated  erasure 
in  a  will  made  after  execution  is  to  render  the  change  sought  to  be 
made  inoperative,  leaving  the  will  to  stand  in  form  and  effect  as  be- 
fore the  alteration  was  attempted.  In  Matter  of  Lang's  Will,  9  Misc. 
Rep.  521,  30  N.  Y.  Stii)p.  388,  it  was  held  that  alterations  and  erasures 
made  after  the  execution  of  a  will  will  not  invalidate  it  if  the  oris:inal 
intention  of  the  testator  can  be  ascertained.  In  Matter  of  Prescott,  4 
Redf.  Sur.  178,  it  was  held  that  where  a  testator,  after  the  execution 
of  his  will,  makes  erasures  and  interlineations  therein,  without  intend- 
ing to  revoke  the  will,  and  without  re-executing  the  same,  the  will 
must  be  admitted  to  probate  as  originally  executed.  In  Dyer  v.  Erv- 
ing,  2  Dem.  Sur.  IGO,  it  was  held  that  after  one  has  signed  and  pub- 
lished an  instrument,  as  and  for  his  last  will,  though  he  may  revoke 
it  by  destruction,  or  annul  or  modify  it  by  another  writing  executed 
with  due  formalities,  he  cannot  otherwise  vary  its  terms  by  additions, 
interlineations,  obliterations,  or  erasures  on  its  face.  In  Matter  of 
Westbrook's  Will,  41  Misc.  Rep.  339,  89  N.  Y.  Supp.  8G2,  will  after 
execution  was  altered  by  cutting  out  its  first  subdivision  and  fastening 
together  the  remaining  parts;  the  piece  cut  out  could  not  be  found. 
The  scrivener  who  was  also  one  of  the  subscribing  witnesses  testified 
as  to  the  missing  clause,  which  the  court  held  was  sufficient  proof  of 
that  portion  and  admitted  will  to  probate  as  originally  exeaited. 

It  being  the  duty  of  the  surrogate  to  admit  a  will  to  probate  as  ex- 
ecuted, and  to  disregard  alterations  made  without  formalities  pre- 
scribed by  statute,  it  necessarily  follows  that  the  Surrogate  has  power 
to  take  proof  of  the  provisions  of  the  instrument  before  alteration.  A 
decree  will  be  entered  admitting  will  to  probate  as  originally  written 
and  executed. 


In  re  GOODS  OF  BR./VSTER. 
(ITiKh  Court  of  Ju.stlce,  Probate  Dlvlslou.     [18901  P.  36.) 

Motion  on  behalf  of  the  administrator  with  the  will  annexed  of 
Thomas  Brasier.  late  of  Castle  Cottage,  near  Gatacrc,  in  the  pari.sh  of 
Claverlcy,  Shropshire,  who  died  on  January  9,  189:.  that  certain 
erasures  and  alterations  in  the  will  might  be  filled  up  by  the  restora- 
tion of  names  alleged  to  have  been  originally  written  therein. 

The  will  consisted  of  three  testamentary  documents,  the  first  pre- 
pared by  a  solicitor  and  dated  March  27,  1874,  appointing  executors 
and  leaving  real  and  personal  property  among  the  testator's  wife  Han- 
nah and  his  three  sons,  Daniel,  Charles,  and  Thomas  Ash  Brasier,  and 
constitnting  his  wife  residuary  legatee;  the  second,  a  codicil  dated 
December  24,  1881.  appointing  other  executors;   the  third,  a  holograph 


Ch.   7)  THE   REVOCATION   OF   WILLS.  257 

will  dated  June  4,  1884,  and  appointing  executors  from  the  probate 
of  which  the  following  is  an  extract: 

"I  give  and  bequeath  to  my  son  Charles  Brasier  the  house  and  stable 
and  all  the  lands  at  the  Broad  Lanes  for  him  and  his  heirs  and  assigns 
forever,  I  give  and  bequeath  to  my  son,  Thomas  Ash  Brasier  the  cot- 
tage and  garden  and  land  at  the  Broad  Oak  in  the  parish  of  Claverley 
in  the  county  of  Salop,  I  give  and  bequeath  the  cottage  and  garden 

at  the  Broad  Lanes  to  my  son Brasier  for  him  and  his  assigns 

for  ever,  I  give  and  bequeath  to  my  son  Brasier  the  cottage 

at  Portobello  near  Wolverhampton  in  the  county  of  Stafford,  and  I 
leave  unto Brasier  three  hundred  pounds  in  money  at  my  de- 
cease." 

The  blanks  contained  names  which  appeared  to  have  been  written 

over  erasures. 

Mr.  T.  IL  Gurrin,  an  expert  in  handwriting,  deposed  that  he  had 
examined  the  will  with  a  powerful  magnifying  glass,  and  found  that 
these  names,  which  were  respectively  "Daniel,"  "Thomas,"  and 
"Thomas,"  had  been  altered,  and  that  the  name  originally  written  was 
in  each  case  "Daniel." 

The  surviving  attesting  witness  was  unable  to  state  whether  the  al- 
terations had  been  made  when  the  will  was  executed. 

All  the  executors  were  dead.  The  testator's  wife  and  three  sons 
survived  him,  but  she  and  Thomas  Ash  Brasier  had  since  died. 

The  applicant  was  Daniel  Brasier,  who  had  obtained  the  consent 
of  Charles  Brasier,  and  that  of  the  widow  of  Thomas  Ash  Brasier. 
It  did  not  appear  whether  Hannah  Brasier  or  Thomas  Ash  Brasier 
had  made  a  will. 

Priestley,  in  support  of  the  application.  The  word  "Daniel,"  being 
visible  to  an  expert  using  a  magnifying  glass,  is  "apparent"  within 
the  meaning  of  section  21  of  the  Wills  Act,  and  should  be  substituted 
in  the  blank  spaces. 

GoRELL  Barnks,  J.  An  order  may  be  made  in  the  terms  of  the 
motion,  on  proof  being  given  to  the  registrar  that  all  the  persons  in- 
terested in  the  estate  are  before  the  court." 

21  "In  the  present  case  I  am  satisfied  that  the  words  In  question  may  be 
read  by  nn  expert,  by  the  means  only  of  plaolnjr  an  opaque  substance,  sneh 
as  a  piece  of  brown  paper,  round  the  passages  In  question,  vvhcMi  the  page  is 
held  against  a  window  pane.  These  means  appear  to  me  to  fall  well  within 
those  i)onnitted  by  the  authorities  T  have  mentioned.  If  It  Is  permissible 
to  use  a  magnifying  glass,  I  i)resnnio  of  any  strength,  and.  I  should  suppose, 
with  or  without  the  additional  employment  of  a  lens,  by  which  the  light  upon 
the  object  might  be  concentrated,  which  are  all  artificial  means,  a  fortiori, 
as  it  seems  to  me.  is  it  allowable  to  place  a  piece  of  brown  paper  round 
an  object  on  which  It  is  desired  to  discern  writing.  That  is  not  to  resort  to 
artificial  means  at  all.  The  rays  from  the  object  are  not  deflected,  and 
there  is  no  concentration  of  light  upon  it.  All  that  is  done  is  to  exclude  su- 
perfluous light,  and  the  action  of  thus  using  a  piece  of  paper  api)ears  to  me 
not  to  diller  in  principle  from  the  action  of  a  man  who  shades  his  eyes  in 
Bunshiue  to  look  at  a  landscape,  or  of  a  man  who  forms  his  hand  into  a  tube 

Cost.  Wills— 17 


258  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

In  re  GOODS  OF  SAVAGE. 
(Court  of  Probate,  1870.    L.  R.  2  P.  &  D.  78.) 

John  Savage,  late  of  Beaufort  Buildings,  Bath,  died  on  the  9th  of 
January,  ISTO,  leaving  a  duly  executed  testamentary  paper  in  the 
following  terms : 

"This  is  a  codicil  to  my  will.  After  the  death  of  my  dear  wife,  save 
and  except  the  Colly  estate,  containing  300  acres  more  or  less,  I  give 
all  the  land  I  have  in  the  parish  of  Tetbury,  to  my  son  William,  ab- 
solutely, and  I  also  give  to  my  son  William  the  Vale  of  Neath  De- 
benture'Stock,  value  £1000,  to  cover  the  bond  I  have  given  to  Robert 
Holdsworth  and  Francis  Savage,  my  son,  as  trustees  of  his  marriage 
settlement,  for  securing  the  sum  of  £600  and  interest.  Witness  my 
hand  this  2nd  day  of  August,  1869,  at  Mappowder,  Dorsetshire. 

"Signed  by  the  said  John  Savage  as  a  codicil  to  this  will,  in  the 
presence  of  us,  etc.  James  WiUiam  James,  farmer,  Mappowder; 
Charles  Giles,  groom,  Mappowder." 

The  following  facts  were  disclosed  in  the  affidavits :  On  the  2d  of 
August,  1869,  the  deceased  being  then  at  Mappowder,  in  Dorsetshire, 
handed  to  his  son.  Rev.  William  Savage,  a  sealed  envelope,  and  told 
him  to  keep  it.  Rev.  W.  Savage  retained  possession  of  the  envelope 
until  the  testator's  death,  and  it  was  then  opened,  and  the  codicil  was 

the  better  to  enable  him  to  see  a  picture.     The  argument  addressed  to  me 
agiin';t  this  view  turns  upon  what,  I  think,  Is  a  mistaken  interpretation  of 
the  words  'on  the  face  of  the  instrument,'  employed  in  the  judgments  from 
which  I  have  quoted.     It  is  said  that,  in  this  case,  the  words  in  question  are 
not  'apparent'  on  the  face  of  the  instrument,  but  are  made  apparent  only  by 
transmission  of  light  through  the  back  of  the  document,  and  by  the  words 
being  exhibited  against  that  light.     But   I   do  not  think  that  in  using  the 
words  'on  the  face  of  the  instrument'  the  judges,  who  have  employed  them, 
intended  to  draw  anv  distinction  between  seeing  the  front  of  the  document,^ 
with    no    light    liehind    it,   and   seeing  the   document   with    light  transmitted 
through  it.     They  were  drawing  a  distinction  between  what  could  be  seen  to 
be  the  contents  or  effect  of  the  instrument,  as  against  what  could  be  Inferred 
to  be  its  language  from  extrinsic  evidence.     To  some  extent,  the  use  of  the 
nhrase  appears  to   me  metaphorical,   much  as  one  says  that  a   pleading  Is 
good  or  bad  on  the  face  of  it.     I  am  by  no  means  sure,  however,  that  even 
In  the  strictest  sense  of  the  words  the  writing  In  question  is  not  apjiarent 
'on  the  face  of  the  Instrument.'  when  it  is  read  In  the  way  In  which  it  can 
be  read  in  this  case.     The  watermark  on  foolscap,  though  generally  illegible, 
If  the  paper  be  laid  on  a  table,  becomes  clear  when  the  paper  is  held  up  to 
the  light.     It  appears  to  me  that  in  that  case  the  words  or  date  of  the  water- 
mark are  not  only  apparent,  but  apparent  on  the  face  of  the  paper.     When 
ftn  illuminated  clock  is  seen  at  night,  I  think  that  the  hands  and  figures  are 
npparenr,  and  apparent  on  the  face  of  the  clock.     Can  it  be  said  that,  on 
the  moment  of  the  clock  lieing  limited,  they  cease  to  be  apparent  on  its  face, 
and   l)ecome  apparent  on  soniotlung  else,   or  on  nothing?      Hut  even  if  tlie 
writing  in  question  can  in  tliis  case  properly  l)e  said  not  to  be  'apparent  on 
the  face  of  tlie  instrument.'  I   must  remark  that  the  act  of  Parliament  it- 
self si)eaks  of  words  being  'api)arent,'  and  that  to  insist  on  their  being  ap- 
parent 'on  the  face  of  the  instrument,'  in  the  sense  sought  to  bo  attributed 
to  the  phrase,  is  to  put  a  gloss  on  the  language  of  the  act"     Ffinch  v.  Combe, 
11894]  P.  191,  202-203. 


Ch.  7)  THE  REVOCATION   OF   WILLS.  259 

found  in  it.  No  will  or  other  codicil  could  be  found,  but  there  was  an 
unexecuted  testamentary  paper  dated  in  the  year  1869,  In  December, 
1869,  the  testator  shewed  a  rough  draft  of  a  will  to  another  son,  Fran- 
cis Savage,  who  asked  what  he  had  done  with  the  original  will,  and 
he  replied,  "To  tell  you  the  truth,  I  have  burnt  it."  There  was  no 
other  evidence  as  to  the  existence  of  a  will. 

Pritchard  moved  for  a  grant  of  administration,  with  the  codicil 
annexed,  to  Francis  Savage,  the  son  and  one  of  the  next  of  kin  of  the 
deceased. 

Lord  Penzance.  I  think  the  grant  ought  to  be  made.  The  ques- 
tion involved  in  this  case  was  raised  in  Black  v.  Jobling,  Law  Rep. 
1  P.  &  D.  685,  and  the  court  there  reviewed  the  previous  decisions 
upon  it.  Before  the  passing  of  the  Wills  Act,  the  principle  was  that 
the  codicil  fell  to  the  ground  with  the  will  when  the  will  was  revoked, 
but  that  if  it  could  be  established  that  the  testator  intended  the  codicil 
to  stand  by  itself,  notwithstanding  the  revocation  of  the  will,  then  the 
court  would  give  effect  to  the  codicil.  At  that  time  the  court  entered 
largely  into  the  question  of  what  testamentary  papers  constituted  the 
will  of  the  testator,  quite  independent  of  the  question  of  their  signa- 
ture by  the  testator.  But  then  the  Wills  Act  was  passed,  which  ex- 
pressly enacted  (section  20)  that  "no  will  or  codicil  or  any  part  there- 
of, shall  be  revoked  otherwise  than  as  aforesaid,  or  by  another  will 
or  codicil  executed  in  the  manner  hereinbefore  required,  or  by  some 
writing  declaring  an  intention  to  revoke  the  same,  *  *  *  or  by  the 
burning,  tearing,  or  otherwise  destroying  the  same  by  the  testator  with 
the  intention  of  revoking  the  same."  The  court  cannot,  in  the  teeth 
of  the  language  of  that  section,  lay  down  the  proposition  that  a  codicil 
is  revoked  by  the  mere  fact  of  the  revocation  of  the  will.  If  this  had 
been  the  first  case  in  which  the  question  had  arisen  after  the  statute, 
I  should  have  entertained  no  doubt  that  the  statute  governed  it,  and 
that  the  codicil  not  having  been  revoked  by  any  of  the  modes  indi- 
cated by  the  statute,  it  was  entitled  to  probate. 

But  there  have  been  some  decisions  on  this  subject  which,  as  I 
pointed  out  in  Black  v.  Jobling,  Law  Rep.  1  P.  &  D.  685,  are  hardly 
satisfactory.  There  are  two  decisions  in  Notes  of  Cases,  in  which  the 
question  was  raised :  In  the  Goods  of  Halliwell,  4  N.  of  C.  400,  401, 
and  Clogstoun  v.  Wallcott,  5  N.  of  C.  623,  625.  In  the  first  case,  Sir 
H.  J.  Fust  said :  "The  question  is,  as  the  will  is  not  forthcoming, 
what  is  to  be  done  with  the  codicil?  Now  the  presumption  would  be 
that  the  v/ill  was  destroyed  by  the  deceased,  supposing  it  has  not  been 
lost  or  overlooked ;  and  in  that  case  the  codicil  would,  upon  the  general 
principle,  fall  to  the  ground  with  the  will."  The  court  there  seems  to 
have  dealt  with  the  matter  quite  independently  of  the  words  of  the 
statute.  In  the  second  case  there  is  this  passage  in  Sir  H.  J.  Fust's 
judgment:  "Under  the  old  law  the  effect  of  destroying  a  will  was,  by 
presumption,  to  defeat  the  operation  of  the  codicils  to  the  will;  by  the 


260  .  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

present  law,  there  must  be  an  intention  to  destroy."  This  passage  is 
certainly  hardly  satisfactory,  because  the  statute  says  nothing  about 
an  intention  to  destroy,  but  that  the  paper  shall  not  be  revoked  unless 
it  is  actually  destroyed.  When  the  matter  came  before  this  court  in 
Grimwood  v.  Cozens,  2  Sw.  &  Tr.  364,  368,  Sir  C.  Creswell  said :  "I 
think  it  has  been  established  by  the  cases  cited  at  the  bar,  that  previous 
to  the  passing  of  1  Vict.  c.  26,  a  codicil  was  prima  facie  dependent  on 
the  will,  and  that  the  destruction  of  the  latter  was  an  implied  revoca- 
tion of  the  former;  and  moreover,  that  Sir  H.  J.  Fust  was  of  opin- 
ion that  no  alteration  >of  this  principle  was  made  by  the  passing  of 
the  statute."  That  is  certainly  not  what  Sir  H.  J.  Fust  said.  He 
said  there  was  an  alteration  made  by  the  statute,  and  the  alteration 
consisted  in  this,  that  the  statute  made  it  necessary  to  establish  an 
intention  to  destroy. 

It  seems  to  me  that  the  matter  was  not  properly  considered  in  those 
cases.  I  said  as  much  in  Black  v.  Jobling.  Law  Rep.  1  P.  &  D.  685, 
but  on  looking  at  the  case  again,  it  occurred  to  me  that  the  meaning 
of  the  court  had  not,  perhaps,  been  made  sufficiently  clear.  The  result 
is  that,  in  my  judgment,  the  words  of  this  statute  are  imperative,  and 
that  the  decisions  to  which  I  have  referred,  since  the  passing  of  the 
statute,  do  not  appear  to  have  proceeded  on  a  consideration  of  the 
effect  of  those  imperative  words.  In  this  case  the  testator  having  left 
behind  him  a  properly  executed  testamentary  paper,  which  no  doubt  is 
in  the  form  of  a  codicil,  that  paper  must  be  admitted  to  probate,  un- 
lesp  it  is  revoked  in  some  manner  indicated  by  the  statute.  If  a  tes- 
tator destroys  his  will,  and  does  not  destroy  his  codicil,  it  appears  to 
me  that  his  intention  probably  is  not  to  revoke  the  codicil ;  but  I  pro- 
ceed not  on  the  ground  of  intention  but  on  the  words  of  the  statute. 
I  hold  that  when  a  testator  has  once  executed  a  testamentary  paper, 
that  paper  will  remain  in  force  unless  revoked  in  the  particular  man- 
ner named  in  the  statute.    Motion  granted.** 

22  See  Gardiner  v.  Courthope,  L.  R.  12  P.  D.  14  (1886).  But  see  Susrden  v. 
Lord  St.  Leonards,  L.  R.  1  P.  D.  154,  205-206  (1876) ;  Pepper's  Estate,  148 
Pa.  5,  23  Atl.  1039  (1892).  In  the  la.st  case  the  court  said:  "It  is  possible 
that  cases  may  arise  where  a  codicil  could  be  pi-obated  separate  from  the 
will.  But  it  would  be  necessary  to  show  that  the  testator  intended  it  to  oper- 
ate separately  from  the  will." 

In  Managle  v.  Parker  (N.  H.)  71  Atl.  637  (1908),  it  Is  held  that  where  a 
will  is  executed  in  duplicate  it  is  not  revoked  by  the  mere  destruction  by 
testator  of  the  copy  In  his  possession,  if  he  understands  that  the  other  copy 
is  left  in  force.  That  accords  with  the  rule  that  only  one  of  exact  dupli- 
cates need  be  probated.     Grossman  v.  Grossman,  95  N.  Y.  145  (1884). 


^^'  ^  AVi      f-      ^^^   REVOCATION   OF  WILLS.  261 


In  re  GOODS  OF  BLECKLEY. 
(High  Court  of  Justice,  Probate  Division,  1883.    L.  R.  8  P.  D.  169.) 

Thomas  Macdougall  Bleckley,  M.  D.,  C.  B.,  late  a  brigade  surgeon 
in  Her  Majesty's  army,  deceased,  died  on  the  33d  of  November,  leav- 
ing a  widow  and  infant  children. 

The  deceased  had  made  a  will  dated  the  29th  of  December,  1875, 
by  which  after  appointing  executors  and  giving  certain  specific  leg- 
acies, he  bequeathed  his  property  to  trustees  in  trust  for  his  wife  for 
life,  and  after  her  death  for  the  children  of  the  marriage.  He  also 
made  a  codicil  dated  the  13th  of  May,  1880,  by  which  he  appointed  a 
different  executor,  and  in  all  other  respects  confirmed  his  will."  The 
codicil  was  written  at  the  foot  of  the  will  and  upon  the  same  sheet 
of  paper. 

In  October,  1882,  he  had  directed  another  will  to  be  prepared,  but 
it  never  was  executed,  and  on  the  18th  of  that  month  he  revoked  the 
will  by  cutting  off  his  signature  thereto,  but  did  not  in  any  way  muti- 
late the  codicil.  It  appeared,  however,  from  the  affidavit,  that  the  de- 
ceased believed  that  by  destroying  the  will  he  had  also  destroyed  the 
codicil,  and  on  his  death  bed  he  told  his  wife  that  he  would  die  in- 
testate, and  gave  her  directions  accordingly. 

Bayford  moved  for  letters  of  administration  as  in  the  case  of  in- 
testacy. 

Sir  J.  Hannen,  President.  The  question  whether  the  deceased 
meant  to  revoke  this  codicil  depends  upon  the  intention  to  be  gathered 
from  the  circumstances  of  the  case,  and  they  satisfy  me  that  he  meant 
to  revoke  both  the  will  and  codicil.    Motion  granted.*' 

23  See  In  re  Brookman,  11  Misc.  Rep.  675,  83  N.  Y.  Supp.  575  (1895).  "If  a 
will,  whether  written  on  one  sheet  of  paper  or  several  sheets,  be  torn  up  by 
the  testator,  or  thrown  into  the  fire,  then  it  is  manifest  that  the  act  of  de- 
struction is  directed  against  the  whole  instrument,  though  only  a  part  be 
destroyed,  and  that  part  a  codicil  only ;  but  if  the  testator  cancels  or  ob- 
literates a  particular  clause,  or  destroys  one  of  the  sheets,  retaining  and 
preserving  the  rest,  then  his  purpose  to  destroy  a  part  only  is  equally  clear, 
and  the  sole  question  is  as  to  the  validity  and  effect  of  what  remains  un- 
eradicated;  a  question  which  may  occur  as  to  the  whole  residue  of  the  in- 
strument, or  (as  in  Sutton  v.  Sutton,  Cowp.  812;  Larkins  v.  Larkins,  3  Bos. 
&  Pul.  16;  Short  v.  Short,  4  East,  419)  as  to  the  residue  of  a  particular 
clause.  In  the  case  before  us,  it  was  physically  impossible  that  the  act  of 
destruction  in  question,  the  burning  of  the  codicil,  could  have  been  directed 
against  the  will,  inasmuch  as  the  will  was  not  present,  but  in  a  different 
custody.  And  yet  the  court  instructed  the  jury,  that  if  the  testator  intended, 
at  the  time  of  destroying  the  codicil,  thereby  to  revoke  the  will,  in  that  case 
the  destruction  of  the  codicil  was  a  revocation  of  both  the  will  and  the  codi- 
cil. If  this  be  correct,  it  must  be  either  because  a  codicil  is  so  essential  a 
part  of  a  will  that  its  revocation  necessarily  involves  the  revocation  of  the 
will  (a  ground  too  palpably  wrong  to  require  discussion,  and  not  assumed  by 
the  appellees'  counsel,  nor  by  the  circuit  court) ;  or  because  the  destruction  of 
a  codicil,  without  any  the  slightest  destruction  of  the  will,  or  any  attempt 
to  destroy  it,  or  even  an  intent  to  destroy  it,  must  have  the  effect  of  revok- 
ing the  will,  if  so  intended  by  the  testator.  This  last  proposition,  it  seems 
to  me,  requires  but  little  consideration  after  what  has  been  already  said. 


262  LAST  WILLS  AND  TESTAMENTS.  (Part  1 


HOWARD  et  al.  v.  HUNTER. 

(Supreme  Court  of  Georgia,  1902.    115  Ga.  357,  41  S.  E.  638,  90  Am.  St 

Rep.    121.) 

Cobb,  J,  A  paper  purporting  to  be  the  last  will  of  J.  W.  Howard 
Avas  propounded  for  probate  by  the  nominated  executor,  and  certain 
persons,  describing  themselves  as  the  heirs  at  law  of  Howard,  filed 
their  caveat  objecting  to  the  probate  of  the  paper  as  a  will  upon  the 
ground  that,  after  the  paper  was  executed,  Howard  revoked  the  same, 
and  that,  therefore,  it  is  not  his  last  will.  The  case  was  carried  by 
appeal  to  the  superior  court,  and  at  the  trial  in  that  court  the  judge 
directed  a  verdict  in  favor  of  the  propounder.  The  case  is  here  upon 
a  bill  of  exceptions  filed  by  the  caveators,  complaining  that  the  court 
erred  in  refusing  to  grant  them  a  new  trial. 

It  appears  from  the  evidence  that  the  paper  propounded  as  a  will 
was  executed  with  all  the  formalities  required  by  law  for  the  execu- 
tion of  wills.     When  offered  in  evidence,  it  was  objected  to  on  the 

To  place  it  in  the  strongest  light  for  the  appellees,  let  us  suppose  that  the 
testator,  at  the  time  of  burning  the  codicil,  expressly  declared  that  he  did 
it  with  intent  thereby  to  revoke  the  will.     Could  it  have  that  effect?    The 
will  itself  was  in  no  wise  canceled  or  destroyed,  but  remained  perfect  and 
entire,  indestructible  and  intangible  by  the  act  in  question.     Then  is  it  not 
obvious,  that  if  revoked,  it  must  have  been  by  the  sole  efficacy  of  the  testa- 
tor's parol  declaration,  directly  in  the  teeth  of  the  statute?    The  argument 
of  the  appellees'  counsel  is,  that  the  question  of  revocation  is  in  some  degree 
a  question  of  intention,  and  the  act  of  cancellation  or  destruction  an  equivo- 
cal act,  which  must  be  done  with  an  intention  to  revoke,  and  therefore  that, 
though  a  partial  cancellation  or  destruction  is,  prima  facie,  a  partial  revoca- 
tion, yet  by  the  intent  of  the  party,  it  may  be  extended  to  a  total  revocation. 
The  premises  are  true,   but  do  not  warrant  the  conclusion.     The  intent  to 
revoke   must  concur  with   the  act  of   revocation,   but  cannot  go  beyond   it, 
being  limited  by  law  to  the  act  itself.     We  must  not  confound  the  intent  to 
do  the  phvsical  act  of  cancellation  or  destruction,  with  the  intent  to  produce 
thereby  the  legal  effect  of  revocation.     When  the  intent  to  do  the  physical 
act  concurs  with  the  act  itself,  it  then  becomes  an  act  of  revocation;    and 
when   the  intent  to  revoke  concurs  with  the  act  of   revocation,  it  then  be- 
comes a  legal  revocation.     When  the  concurring  physical  act  and  intent  to 
do  it  are  partial  only,  we  have  merely  a  partial  act  of  revocation,  and,  as 
regards  that  act.  the  testator  designs  to  do  no  more;    and  thus  the  question 
Is  presented,  whether  a  partial  act  of  revocation  can  accomplish  a  total  rev- 
or-ation?   a  question  which  is  answered  by  merely  stating  it.     In  this  view  of 
the  sul).iect,  it  avails  the  learned  counsel  nothing  to  prove,  from  reason  or 
authority,  that  a  codicil  is  to  be  taken  as  a  part  of  the  will ;   for  still  it  is  a 
case   of   partial    revocation.      The    argument    is,    however,    stronger    against 
total  revocation,  where  the  act  of  cancellation  or  destruction  is   applied  to 
tlie  codicil,  than  where  it  is  applied  to  a  part  only  of  the  will ;    for  the  part 
of  the  will  canceled  or  obliterated  may  be  essential  to  the  validity   of  the 
rest,  which  can  never  be  as  regards  the  codicil  relatively  to  the  will.     The 
codicil  is  a  part  of  the  will  for  construction  and  testamentary  disposition, 
but  not  for  execution,  nor  for  revocation,  when  that  is  applied  to  the  codicil. 
It  Is  a  branch  not  essential  to  the  existence  of  the  tree,  but  which  can  have 
itself  no  distinct  vitality.     In  my  opinion,  therefore,  the  instruction  in  ques- 
tion violates  both  the  letter  and  the  spirit  of  the  statute,  and  is  fraught  with 
all  the  evils  of  parol  revocations."     Baldwin,  J.,  in  Malone's  Adm'r  v.  Hobbs, 
1  Rob.  (Va.)  340,  381-3S3.  39  Am.  Dec.  2G3,  26G-268  (1842). 


Ch.  7)  THE  REVOCATION   OF   WILLS.  263 

ground  that  it  appeared  from  the  paper  itself  that  as  a  will  it  had 
been  revoked  by  the  testator,  this  objection  being  baaed  on  the  fol- 
lowing state  of  facts :  The  will  was  written  on  three  of  the  pages  of 
a  double  sheet  of  legal  cap  paper,  and  signed  on  the  third  page.  The 
attesting  clause  signed  by  the  witnesses  was  near  the  close  of  the  last 
page,  the  name  of  the  last  witness  being  on  the  last  fold  of  the  paper 
when  the  same  was  folded  up.  Across  the  back  of  the  paper,  on  the 
last  page,  and  over  this  last  fold,  were  these  words:  "This  will  is  made 
void  by  one  of  more  recent  date.  J.  W.  Howard,"  Had  this  part  of 
the  paper  been  torn  off  as  folded,  the  name  of  one  of  the  witnesses  to 
the  will  would  have  been  torn  from  the  paper. 

Did  this  entry  upon  the  will  have  the  effect  to  revoke  the  same? 
The  Code  declares  that  express  revocation  by  written  instrument  must 
be  executed  with  the  same  formality  and  attested  by  the  same  number 
of  witnesses  as  are  requisite  for  the  execution  of  a  will.  Civ.  Code, 
§  3342.  It  is  apparent,  therefore,  that  the  entry  upon  the  will  cannot 
have  the  effect  of  an  express  written  revocation,  and  this  was  prac- 
tically conceded  by  counsel  for  the  plaintiffs  in  error.  It  was  con- 
tended that,  although  the  entry  would  fail  as  a  written  revocation,  it 
would  nevertheless  operate  as  a  revocation,  for  the  reason  that  it 
amounted  to  a  cancellation  of  the  will.  A  will  may  be  revoked  by 
destruction  or  obliteration  done  by  the  testator  or  by  his  direction 
with  the  intention  to  revoke,  and  an  intention  to  revoke  will  be  pre- 
sumed from  the  cancellation  or  obHteration  of  a  material  portion  of  the 
will.    Civ.  Code,  §  3343.      ' 

In  order  for  an  obliteration  or  cancellation  to  be  effective  as  a  rev- 
ocation, it  is  necessary  that  the  obliteration  or  cancellation  should  be 
upon  the  will  itself,  and  be  of  such  a  character  as  to  indicate  clearly 
that  it  is  the  intention  of  the  testator  that  the  paper  should  be  no  longer 
operative  as  a  will.  While  the  mere  obliteration  or  cancellation  of  an 
immaterial  part  of  the  paper — such  as  the  seal — will  not,  under  the 
law  of  this  state,  raise  any  presumption  of  an  intention  to  revoke,  if 
any  material  part  of  the  will  is  obliterated  or  marked,  or  words  in- 
dicating an  intention  to  revoke  written  across  the  same,  a  presumption 
of  revocation  will  arise,  and  the  instrument  will  be  said  to  have  been 
revoked  as  a  will  by  cancellation.  If,  however,  the  paper  be  intact, 
and  no  material  part  of  the  same  be  obliterated,  written  across,  or 
canceled  in  any  way,  the  mere  fact  that  there  may  appear  words  on 
some  portion  of  the  paper  upon  which  the  will  is  written  which  would 
indicate  an  intention  to  revoke  will  not  have  the  effect  of  revoking  the 
will  when  the  words  are  not  written  in  such  a  way  as  to  have  the 
effect  of  obliterating  or  canceling  or  destroying  any  words  of  the  will 
itself.  A  will  may  be  revoked  by  a  writing,  or  a  will  may  be  revoked 
by  a  cancellation.  .  In  each  case  an  intention  to  revoke  is  necessary  to- 
a  complete  revocation. 

But,  even  though  the  intention  to  revoke  be  present,  a  revocation 
will  not  result  unless  one  of  the  methods  prescribed  in  the  statute  is 


2G4  LAST   WILLS   AND   TESTAMENTS.  (Part  1 

pursued.  Even  though  there  be  an  intention  to  revoke  by  cancella- 
tion, and  this  intention  be  plainly  apparent,  a  revocation  vi^ill  still  not 
result  unless  some  material  portion  of  the  will  is  obliterated  or  can- 
celed. And  so,  if  there  be  an  intention  to  revoke  by  written  instru- 
ment, the  will  will  not  be  revoked  unless  the  writing  be  signed  and  at- 
tested in  the  manner  provided  for  the  execution  of  a  will  itself.  In 
the  present  case  it  is  manifest  that  the  testator  had  the  intention  to 
revoke.  This  intention  was  to  revoke  by  written  instrument,  and  the 
revocation  fails  for  the  reason  that  the  writing  was  not  signed  in  the 
presence  of  three  witnesses  in  the  manner  provided  in  the  statute.  The 
writing  cannot  operate  as  a  revocation  by  cancellation  for  the  reason 
that  no  material  portion  of  the  will  is  canceled  or  obliterated. 

We  think  this  conclusion  is  demanded  by  the  provisions  of  our  Code. 
The  provisions  of  the  Code  on  the  subject  of  revocation  of  wills  are 
substantially  the  same  as  those  of  the  English  statute  of  frauds.  In 
the  case  of  Ladd's  Will,  60  Wis.  187,  18  N.  W.  734,  50  Am.  Rep.  355, 
it  was  held  under  a  statute  which  contained  provisions  very  similar 
to  those  in  our  Code  on  the  subject  of  revocation  of  wills  by  written 
instrument  and  cancellation,  that,  where  a  will  was  written  on  the  first 
page  of  a  double  sheet  of  paper,  and  the  testatrix  wrote  upon  the 
fourth  page  of  the  sheet  the  words,  "I  revoke  this  will,"  signing  and 
dating  the  same,  but  such  writing  was  not  attested,  or  subscribed  by 
witnesses,  the  words  did  not  take  effect  as  a  written  revocation,  nor 
did  the  same  amount  to  a  cancellation  of  the  will.  The  conclusion  just 
stated  was  reached  in  that  case  after  an  exhaustive  examination  of 
authorities,  which  are  collected  together  in  the  opinion  of  Mr.  Justice 
Cassoday. 

In  Lewis  v.  Lewis,  2  Watts  &  S.  (Pa.)  455,  it  was  held  that  the 
word  "Obsolete,"  written  by  a  testator  on  the  margin  of  his  will,  but 
not  signed  in  the  manner  provided  in  the  statute  of  Pennsylvania,  did 
not  operate  as  an  express  revocation  of  the  will,  nor  amount  to  a  can- 
cellation of  the  same.  In  the  case  of  Warner  v.  Warner's  Estate.  37 
Vt.  35G,  it  was  held  that,  where  a  testator  wrote  his  will  mostly  upon 
one  side  of  a  half  sheet  of  foolscap  paper,  the  signature  and  attesta- 
tion clause  being  upon  the  other  side  of  the  same  paper  near  the  top, 
and  two  years  afterwards  wrote  below  all  the  writing,  and  near  the 
middle  of  the  sheet,  "This  will  is  hereby  canceled  and  annulled  in  full 
this  15th  day  of  March,  1859,"  this  amounted  to  a  revocation  of  the 
will  by  canceling.  The  ruling  made  in  that  case  was  said  by  Mr.  Jus- 
tice Cassoday,  in  the  opinion  in  the  case  above  referred  to,  to  be  "in 
opposition  to  the  principles  maintained  by  some  of  the  best  adjudicated 
cases,"  and  attention  was  called  to  the  fact  that  that  decision  was  con- 
demned by  one  of  the  ablest  text  writers  on  the  subject  of  wills.  See 
1  Redf.  Wills  (^th  Ed.)  *318. 

In  the  case  of  Semmes  v.  Semmes,  7  Har.  &  J.  388,  which  is  some- 
times cited  as  authority  for  the  proposition  that  written  entry  upon  a 
will  may  have  the  effect  to  revoke  the  same  as  by  cancellation,  it  ap- 


Ch.   7)  THE   REVOCATION   OF   WILLS.  265 

peared  that  there  was  not  only  a  written  entry  upon  the  will  indicating 
an  intention  to  revoke,  but  a  pen  had  been  drawn  across  the  signature 
of  the  testator  and  the  names  of  the  subscribing  witnesses,  which,  of 
course,  would  have  the  effect  of  canceling  the  will,  independently  of 
the  entry  upon  the  paper.  As  to  the  effect  of  drawing  Hnes  with  a 
pen  across  words  in  a  will,  see  In  re  Kirkpatrick's  Will,  22  N.  J.  Eq. 
463 ;   Glass  v.  Scott,  14  Colo.  App.  377,  60  Pac.  186. 

In  the  case  of  Evans'  Appeal,  58  Pa.  238,  where  it  was  held  that  a 
will  was  canceled,  in  addition  to  the  word  "Canceled"  having  been 
written  upon  the  back  of  the  will,  the  signature  of  the  testator  to  a 
codicil  was  crossed  out,  and  the  word  "Canceled"  written  under  it; 
the  signature  of  the  testator  appeared  in  two  places  in  the  original  will, 
and  one  of  these  was  crossed  out  by  a  line  drawn  through  it  and  the 
date  written  under  it;  and  the  will  itself  was  torn  in  two  places.  In 
Witter  V.  Mott,  2  Conn.  67,  it  was  held  that  words  expressive  of  an 
intention  to  revoke,  written  by  a  testator  on  the  back  of  his  will,  and 
signed,  but  not  attested,  by  three  witnesses,  operated  as  an  express 
revocation  of  the  will.  There  was,  however,  no  statute  in  Connecticut 
requiring  written  revocations  of  wills  to  be  signed  in  the  presence  of 
three  witnesses.  This  case,  of  course,  furnishes  no  authority,  in  view 
of  our  statute,  for  holding  the  entry  on  the  will  in  the  present  case  to 
be  an  express  revocation  in  writing. 

We  have  called  attention  to  the  cases  from  Vermont,  Maryland,  and 
Pennsylvania  for  the  reason  that  the  two  former  were  relied  on  by 
counsel  for  the  plaintiff  in  error  in  the  present  case,  and  the  latter 
is  sometimes  cited  as  authority  for  the  proposition  that  there  may  be 
a  cancellation  of  a  will  by  an  entry  to  that  effect  upon  the  paper,  al- 
though such  entry  did  not  have  the  effect  of  obliterating  or  canceling 
any  material  part  of  the  will.  The  two  latter  cases  are  clearly  dis- 
tinguishable from  the  present  case  for  the  reasons  above  stated.  The 
Vermont  case  supports  the  contentions  of  counsel,  but  that  case  is  not, 
in  our  opinion,  sound,  and,  as  has  been  shown  above,  it  has  met  with 
adverse  criticism  at  the  hands  of  a  learned  text-writer,  ias  well  as  at 
the  hands  of  a  jurist  of  undoubted  learning  and  ability.  See,  also, 
upon  the  subject  of  revocation  of  wills  by  cancellation.  Page,  Wills,  §§ 
244-249;  Schouler,  Wills  (3d  Ed.)  §  419  et  seq.;  1  Redf.  Wills  (4th 
Ed.)  *318  et  seq.;  1  Underh.  Wills,  §.228  et  seq.;  Pritch.  Wills,  § 
262;  Beach,  Wills,  §  55 ;  1  Jarm.  Wills  (6th  Am.  Ed.  Big.)  *113 
et  seq. 

Error  is  assigned  upon  the  refusal  of  the  judge  to  allow  a  witness 
to  testify  that  a  few  days  before  the  death  of  the  testator  he  had 
arranged  with  him  and  two  other  witnesses  to  meet  the  testator  at 
an  appointed  time  and  place  for  the  purpose  of  witnessing  the  execu- 
tion of  a  will,  and  in  refusing  to  admit  in  evidence  a  paper  purport- 
ing to  be  a  will  of  J.  W.  Howard,  which  was  unsigned.  There  was 
no  error  in  either  of  the  rulings  complained  of.  The  only  purpose  in 
introducing  this  evidence  was  to  show  an  intention  on  the  part  of 


266  LAST   WILLS  AND  TESTAMENTS.  (Part  1 

Howard  to  revoke  the  will  which  was  propounded  for  probate.  There 
was  no  question  as  to  the  fact  that  Howard  had  this  intention.  It  was 
manifest  from  the  entry  upon  the  paper,  and  the  controlling  question 
in  the  present  investigation  was  whether  this  intention  had  been  car- 
ried into  effect.  The  judge  did  not  err  in  any  of  the  rulings  com- 
plained of,  nor  in  directing  a  verdict  in  favor  of  the  propounder. 
Judgment  affirmed.^* 


OETJEN  et  al.  v.  OETJEN. 
(Supreme  Oourt  of  Georgia,  1902.    115  Ga.  1004,  42  S.  B.  387.) 

Cobb,  J.  In  the  case  of  Howard  v.  Hunter,  115  Ga.  357,  41  S.  E. 
d38,  9o'Am.  St.  Rep.  121,  this  court  held  that,  in  order  for  a  written 
entry  upon  a  will  to  operate  as  a  revocation  thereof,  it  must  have 
either  been  attested  in  the  same  manner  and  with  the  same  formality 
as  is  required  for  the  execution  of  a  will,  or  the  entry  must  have  been 
written  upon  the  will  in  such  a  manner  as  to  obliterate  or  cancel  some 
material  portion  of  the  will.  The  facts  of  the  present  case  are  almost 
identical  with  those  of  the  case  just  referred  to,  the  only  difference 
being  that  one  word  of  the  entry  in  the  present  case  was  written  across 
one  word  in  the  last  line  of  the  will.  This  word  was  in  a  sentence 
which  stated  merely  that  a  word  in  the  will  had  been  changed  before 
signing.  It  thus  appears  that  no  material  portion  of  the  will  was  ob- 
literated, even  if  the  mere  writing  across  a  word  in  a  will,  leaving  the 
same  perfectly  legible,  could  be  said  to  be  an  obliteration  or  cancella- 
tion, within  the  meaning  of  the  statute  which  provides  that  a  will  may 
be  revoked  by  canceling  some  material  portion  thereof.  The  case  is, 
upon  its  facts,  absolutely  controlled  by  the  decision  in  Howard  v. 
Hunter. 

Judgment  affirmed. 


In  re  GOODS  OF  WOODWARD. 

(Court  of  Probate,  1871.     L.  R.  2  P.  &  D.  20G.) 

Lord  Penzance.^''  I  think  in  this  case  probate  ought  to  go.  On 
the  death  of  the  testator  a  will  was  found  in  his  custody,  and  duly 
executed;  and  the  question  is,  whether  it  was  ever  revoked.  The 
only  evidence  of  the  matter  is  contained  in  the  fact  that  when  found 

24  "It  seems  to  be  generally  heUl  that  cancellation,  obliteration,  or  erasure 
made  after  the  execution  of  a  will,  which  does  not  in  fact  destroy  some  por- 
tion of  the  material  substance  of  the  will,  does  not  constitute  a  revocation 
thereof  The  words  written  on  the  blank  margin  of  this  will  do  not  touch 
any  part  of  the  will  proper."'  Brown.  J.  (dictum),  in  In  re  Shelton's  Will,  143 
N  C  21S,  T)-i  S.  E.  705  (lOOG).  See,  also,  Lewis  v.  I^wis,  2  Watts  &  S.  (Pa.) 
455  (1^1);    Matter  of  Akers,  74  App.  Div.  401,  77  N.  Y.  Supp.  043  (1902). 

2  6  The  statement  of  facts  Is  omitted. 


Ch,  7)  THE   REVOCATION  OF   WILLS.  .  267 

seven  or  eight  lines  at  the  beginning  of  the  document  had  been  par- 
tially cut  and  partially  torn  off.  The  point  for  my  decision  is,  whether 
in  that  state  of  things,  without  any  other  circumstances  tending  to 
shew  that  the  testator  intended  to  i^ev'oke  his  will,  a  revocation  has 
been  effected.  By  20th  section  (1  Vict.  c.  26)  no  will  or  codicil,  or 
any  part  thereof,  shall  be  revoked  otherwise  than  by  marriage,  or  by 
another  will,  codicil,  or  writing  duly  executed,  or  by  the  burning,  tear- 
ing, or  otherwise  destroying  the  same  by  the  testator  or  by  some  per- 
son in  his  presence  and  by  his  direction,  with  the  intention  of  revoking 
the  same.  Here  the  will  was  duly  executed,  and  there  is  no  evidence 
of  an  intention  to  revoke  it,  unless  such  an  intention  can  be  gathered 
from  the  fact  that  the  first  lines  of  the  will  were  destroyed. 

The  case  of  Clarke  v.  Scripps,  2  Rob.  Ecc.  563,  seems  to  be  most  in 
point.  That  was  a  very  careful  judgment  of  Sir  J.  Dodson,  in  which 
he  investigated  all  the  previous  decisions,  and  I  quite  coincide  in  the 
reasons  he  gives  for  his  judgment.  He  says :  "(Dut  of  the  mutilated 
state  of  this  instrument  arises  the  question,  not  very  easy  of  solu- 
tion, namely,  whether  the  will  is  to  be  considered  revoked  in  toto,  or 
in  part  only.  Upon  this  enactment  (1  Vict.  c.  26,  §  20)  it  is  obvious, 
first,  that  a  part  only  of  a  will  may  be  revoked  in  the  manner  described ; 
in  other  words,  that  the  whole  will  is  not  necessarily  revoked  by  the 
destruction  of  a  part;  nevertheless,  I  do  not  by  any  means  intend 
to  say  that  the  destruction  of  a  part  may  not  under  certain  circum- 
stances operate  as  a  revocation  of  the  entire  will.  Secondly,  it  is  to  be 
observed  that  the  burning,  tearing,  or  otherwise  destroying  the  in- 
strument must  be  done  with  the  intention  to  revoke.  It  is  not  the 
mere  manual  operation  of  tearing  the  instrument,  or  the  act  of  throw- 
ing it  into  a  fire,  or  of  destroying  it  by  other  means,  which  will  satisfy 
the  requisites  of  the  law;  the  act  must  be  accompanied  with  the  in- 
tention to  revoke;  there  must  be  the  animus  as  well  as  the  act,  both 
must  concur  in  order  to  constitute  a  legal  revocation.  It  is  the  animus 
also  which  must  govern  the  extent  and  measure  of  operation  to  be  at- 
tributed to  the  act,  and  determine  whether  the  act  shall  effect  the  revo- 
cation of  the  whole  instrument,  or  only  of  some  and  what  portion 
thereof.  Now  the  intention  of  a  testator  to  revoke  wholly  or  in  part 
may,  I  conceive,  be  proved,  first,  by  evidence  of  the  expressed  dec- 
laration of  a  testator,  especially  if  such  declaration  was  contempora- 
neous with  the  act.  *  *  *  Secondly,  the  intention  may,  in  the 
absence  of  any  express  declaration,  be  inferred  from  the  nature  and 
extent  of  the  act  done  by  a  testator,  i.  e.,  it  may  be  inferred  from  the 
state  and  condition  to  which  the  instrument  has  been  reduced  by  the 
act.  From  the  face  of  the  paper  itself  it  may  be  inferred,  either  he 
did  intend  to  destroy  it  altogether  or  did  not." 

I  think  that  is  a  very  good  way  of  regarding  the  question,  for  it  is 
obvious  that  the  mutilation  may  be  of  such  a  part  and  in  such  a  man- 
ner as  to  afford  evidence  that  the  deceased  did  not  intend  the  docu- 
ment any  longer  to  operate  as  his  will.     If,  for  instance,  he  should 


268  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

tear  off  the  seal  or  his  own  signature?  Applying  the  reasoning  to  the 
present  case,  I  have  come  to  the  conclusion  that,  in  the  absence  of 
any  evidence  to  the  contrary,  the  mere  cutting  off  eight  lines  at  the 
beginning  of  the  document  does  not  shew  an  intention  to  revoke  the 
whole  will.  It  may  be  said  that  the  object  of  tearing  off  the  first 
part  was  to  destroy  l.ie  statement  that  it  was  the  last  will  and  testa- 
ment of  the  deceased,  which  is  a  material  averment,  but  the  force  of 
that  observation  depends  very  much,  if  not  entirely,  upon  the  consid- 
eration whether  there  was  anything  else  of  moment  or  importance  in 
that  part  of  the  will  destroyed,  which  the  testator  might  have  wished 
to  revoke.  It  is  probable  in  this  case  that  there  was.  It  seems  prob- 
able that  the  part  torn  off  did  contain  something  besides  the  mere  state- 
ment that  the  document  was  the  last  will  and  testament  of  the  de- 
ceased, and  it  might  very  well  have  been  that  the  deceased  tore  it  off 
in  order  to  get  rid  of  that.  I  consider,  under  these  circumstances,  that 
the  will  is  not  revoked,  and  must  be  admitted  to  probate.^** 


BIGELOW  V.  GILLOTT. 

(Supreme  Judicial   Court   of   Massachusetts,   1877.     123   Mass.   102,    25  Am. 

Rep.  32.) 

Appeal  from  a  decree  of  the  probate  court  for  the  county  of  Suffolk, 
allowing  a  certain  instrument,  with  the  exception  of  the  "sixth"  and 
"thirteenth"  clauses  thereof,  as  the  last  will  and  testament  of  Thomas 
Liversidge,  deceased.  The  will  of  the  testator  contained  the  following 
clauses : 

"Sixth.  I  give  to  my  executors  the  sum  of  six  thousand  pounds 
sterling,  in  trust,  to  be  used  and  appropriated  by  them  for  the  purpose 
of  paying  the  debts  which  my  father,  Stephen  Liversidge,  owed  in  the 
year  eighteen  hundred  and  twenty-nine,  said  payment  to  be  made  to 
the  legal  representatives  of  the  persons  who  were  his  creditors  at  the 
time:  and  it  is  my  will  and  I  hereby  direct,  that  the  principal  only  of 
said  debts  shall  be  paid,  excluding  interest;  the  sum  of  six  thousand 
pounds  being,  in  my  opinion,  sufficient  for  this  purpose.  If  any  por- 
tion of  said  six  thousand  pounds  shall  remain  after  payment  of  said 
debts,  such  remainder  is  to  belong  to  the  residue  of  my  estate,  and  to 
be  disposed  of  accordingly  by  said  trustees." 

"Thirteenth.  I  give  and  bequeath  to  John  Shufeldt,  of  Marshticld, 

26  See  Sellards  v.  Kirby  (Kan.)  108  Pac.  73  (1010)  But  sf  Jf^"/j;;^  T" 
rw>mr(l  riOO'>1  P  243  In  Ohio,  where  partial  revocation  Is  not  permittea,  it 
has  been'  held  that  the  tearln;^  of  p.-,rt  of  a  will  with  the  Intent  *«  revoke  that 
part  only,  and  not  the  whole  will,  do.s  not  revoke  the  will.  Coph  m  v.  Co.h- 
lin.  70  Ohio  St.  71.  85  N.  E.  lOnS  (1008)  Compare  Lovoll  v^  Q"\t^^^°'  ^-^^^^ 
Y  377.  42  Am.  Rep.  2,^)4  (1882),  which  held  that  under  the  Now  lork  statute 
no  obliteration  could  be  effecHve  unless  it  altogether  destroyed  thf  whole 
will.  See,  aLso.  In  re  Kissaui's  Will.  .wite.  p.  254.  But  see  In  re  Curtis  Will. 
135  App.  Div.  745.  119  N.  Y.  Supp.  1004  (1009). 


Ch.  7)  THE  REVOCATION   OF   WILLS.  269 

in  the  county  of  Plymouth,  the  use  and  improvement  of  the  estate  and 
farm  belonging  to  me  in  said  Marshfield,  during  the  term  of  his  natural 
hfe,  on  the  condition  that  said  Shufeldt  shall  pay  all  taxes  and  cost  o 
insurance  appertaining  to  said  estate,  and  shall  continue  to  live  thereon 
and  occupy  and  cultivate  the  estate." 

[The  nineteenth  clause  gave  his  homestead  estate  to  trustees  to 
maintain  a  charitable  institution.] 

"Tvi^entieth.  I  give,  bequeath  and  devise  all  the  rest,  residue  and 
remainder  of  my  estate  of  every  description,  of  which  I  shall  die 
seised  and  possessed,  to  said  Eleazer  J.  Bispham,  Frederic  A.  Welling- 
ton and  George  Tyler  Bigelow,  absolutely  and  forever,  in  trust,  never- 
theless, to  be  appropriated,  used  and  applied  for  the  maintenance  and 
support  of  the  institution  named  and  described  in  the  last  preceding 
clause  of  this  will." 

The  appellants,  the  heirs  at  law  of  the  testator,  filed  certain  reasons 
of  appeal,  the  following  being  the  only  one  relied  on  in  this  court : 

"That,  it  having  clearly  appeared  by  the  evidence  before  the  pro- 
bate court  that  the  obliterations  in  said  paper  writing  were  made  sub- 
sequently to  the  execution  thereof,  as  the  last  will  and  testament  of 
the  alleged  testator,  and  that  no  re-execution  took  place  after  said 
obliterations  were  made,  the  probate  court,  as  it  decreed  the  probate  of 
the  will,  excepting  the  sixth  and  thirteenth  clauses,  should  also  have 
decreed  that  the  portion  of  the  estate  originally  disposed  of  under  said 
sixth  and  thirteenth  clauses,  remained  undisposed  of  by  the  testator  a1 
the  time  of  his  death,  and  passed  to  his  heirs  at  law." 

Hearing  before  Colt,  J.,  who  found  that  the  will  was  duly  executed 
on  or  about  the  time  of  its  date,  in  the  manner  required  by  law,  by 
Thomas  Liversidge,  as  and  for  his  last  will  and  testament,  and  that  he 
was  at  the  time  of  executing  the  same  of  full  age  and  of  sound  mind ; 
that  in  the  will,  as  presented  for  probate,  ink  lines  appeared,  drawn 
probably  with  a  pen,  through  and  across  each  and  every  word  consti- 
tuting the  clauses  of  the  will,  numbered  respectively  "sixth"  and  "thir- 
teenth," leaving  the  words,  however,  legible  :  'hat  the  lines  were  drawn 
across  the  words  by  Liversidge  in  his  lifetime,  after  the  execution  of 
the  will  by  him  as  aforesaid;  and,  on  all  the  evidence  bearing  upon  the 
intention  of  the  testator  in  making  these  erasures,  and  upon  the  inspec- 
tion of  the  original  will,  found,  if  competent  so  to  find,  that  the  era- 
sures were  made  by  the  testator  with  the  intention  of  revoking  the 
sixth  and  thirteenth  clauses  of  his  will,  but  with  no  intention  of  re- 
voking or  defeating  the  other  provisions  of  his  will. 

The  question  whether  the  evidence  before  him  (which  was  annexed 
to  the  report),  together  with  the  original  will,  justified  this  finding,  as 
well  as  the  question,  what  effect  those  acts  of  the  testator  might  have 
upon  the  will  and  the  probate  of  it,  were  reserved  for  the  considera- 
tion of  the  full  court. 

Morton,  J.  The  presiding  justice  who  heard  this  case  has  found  as 
■facts,  that  the  testator  erased  the  sixth  and  thirteenth  clauses  of  his 


270  LAST  WILLS  AND  TESTAMENTS.  •  (Part  1 

will  after  its  execution,  and  that  such  erasures  were  made  with  the  in- 
tention of  revoking  the  said  clauses,  but  with  no  intention  of  revok- 
ing or  defeating  the  other  provisions  of  the  will.  These  findings  were 
clearly  justified  by  the  evidence.  We  need  not  consider  the  evidence 
in  detail,  as  the  appellants  do  not  contend  that  the  findings  were  erro- 
neous, the  only  questions  raised  by  them  being  as  to  the  legal  effect 
of  such  erasures. 

The  statute  provides  that  "no  will  shall  be  revoked,  unless  by  burn- 
ing, tearing,  cancelling  or  obliterating  the  same,  with  the  intention  of 
revoking  it,  by  the  testator  himself,  or  by  some  person  in  his  presence 
and  by  his  direction ;  or  by  some  other  will,  codicil  or  writing,  signed, 
attested  and  subscribed,  in  the  manner  provided  for  making  a  will." 
Gen.  St.  c.  93,  §  11.  This  provision  is  a  re-enactment  of  Rev.  St.  c. 
62,  §  9,  with  merely  unimportant  verbal  changes.  The  Revised  Stat- 
utes made  material  changes  in  the  law  as  to  wills,  doing  away  with  the 
distinctions  between  wills  affecting  real,  and  wills  affecting  personal, 
property,-  and  putting  all  upon  the  same  footing.  St.  1783,  c.  24,  §  2, 
permitted  the  revocation  of  a  devise  of  land,  "or  any  clause  thereof," 
in  the  manner  pointed  out  in  the  statute,  which  was  the  same  manner 
now  provided  for  the  revocation  of  a  will. 

We  see  nothing  to  indicate  that  the  Legislature,  in  the  revision  of 
1836,  intended  to  change  the  law  in  this  respect  and  to  limit  the  power 
of  revocation  to  a  revocation  of  the  whole  will.  The  power  to  revoke 
a  will  includes  the  power  to  revoke  any  part  of  it.  If  we  were  to  hold 
that  under  this  provision  a  testator  could  not  revoke  a  part  of  a  will 
by  cancelling  or  obliterating  it,  we  should  be  obliged  by  the  same  rule 
of  construction  to  hold  that  he  could  not  revoke  a  part  by  a  codicil, 
which  would  be  against  the  uniform  practice  in  this  commonwealth, 
sanctioned  by  numerous  decisions.  • 

We  are  therefore  of  opinion  that,  in  this  case,  the  cancellation  by  the 
testator  of  the  sixth  and  thirteenth  clauses  of  his  will,  by  drawing  lines 
through  them,  with  the  intention  of  revoking  them,  was  a  legal  revoca- 
tion of  those  clauses. 

The  remaining  question  is  as  to  the  effect  of  this  revocation  upon 
the  property  affected  by  the  revoked  clauses.  The  appellants  contend 
that  the  property  devised  and  bequeathed  therein  is  to  be  treated  as 
intestate  property,  which  goes  to  the  heirs  at  law  or  distributees ;  and 
the  executors  and  trustees  contend  that  it  passes  to  them  under  the 
residuary  clause  of  the  will. 

It  is  a  clearly  settled  rule  of  law  that,  in  a  will  of  personal  property, 
a  general  residuary  bequest  carries  to  the  residuary  legatee  all  the  per- 
sonal property  of  the  testator  which  is  not  otherwise  disposed  of  by 
the  will,  including  all  lapsed  legacies  and  all  void  legacies.  And  in 
this  commonwealth,  since  the  passage  of  the  Revised  Statutes  in  1836, 
the  same  rule  applies  to  wills  of  real  estate.  Thayer  v.  Wellington,  9 
Allen,  283,  85  Am.  Rep.  753,  and  cases  cited.  It  is  true  that  if  a  special 
bequest  in  a  will  lapses  or  fails  for  any  reason,  the  sum  bequeathed 


Ch.  7)  THE  REVOCATION  OF  WILLS.  271 

will  not  pass  to  the  residuary  legatee  if  it  appears  from  the  will  that 
it  was  the  intention  of  the  testator  to  exclude  it  from  the  -esiduary 
clause.  In  Thayer  v.  Wellington,  ubi  supra,  the  court  say :  "We  take 
the  rule  to  be  that  a  general  residuary  clause  passes  all  the  estate  of 
the  testator  not  otherwise  disposed  of,  unless  it  is  manifestly  contra- 
dictory to  the  declared  purpose  of  the  testator,  as  found  in  other  parts 
of  the  will.  There  must  be  a  clear  intention  that  in  no  event  it  shall 
pass  to  the  residuary  devisee." 

In  this  case,  there  is  nothing  to  indicate  an  intention  on  the  part  of 
the  testator  that  the  property  covered  by  the  revoked  clauses  should 
not  go  to  the  residuary  devisees.  The  residuary  clause  is  expressed  in 
the  broadest  terms.  "I  give,  bequeath  and  devise  all  the  rest,  residue 
and  remainder  of  my  estate  of  every  description,  of  which  I  shall  die 
seised  and  possessed."  The  intention  of  the  testator  is  clear,  to  give 
all  his  property,  not  otherwise  disposed  of  by  the  will,  to  the  trustees 
named  therein,  for  the  support  of  the  charity  established  by  the  nine- 
teenth clause.  He  revoked  the  sixth  and  thirteenth  clauses,  and  pur- 
posely and  intelligently  left  the  other  provisions  to  stand  as  his  will. 
The  only  fair  inference  is  that  he  intended  that  the  property  covered 
by  those  clauses,  and  which  by  his  revocation  became  undisposed  of  by 
the  other  clauses  of  the  will,  should  fall  within  the  residuary  clause, 
We  are  of  opinion  that  this  case  falls  within  the  general  rule,  and  that 
the  property  in  question  passes  to  the  residuary  devisees. 

The  argument  of  the  appellants,  that  this  view  is  in  conflict  with  the 
provisions  of  law  which  require  that  a  will  disposing  of  property  should 
be  executed  in  the  presence  of  three  witnesses,  is  not  sound.  It  is 
true  that  the  act  of  revocation  need  not  be  done  in  the  presence  of  wit- 
nesses ;  but  such  act  does  not  dispose  of  the  property.  It  is  disposed 
of  by  the  residuary  clause,  which  is  executed  with  all  the  formalities 
required  in  the  execution  of  a  testamentary  disposition  of  property. 
Decree  of  probate  court  affirmed.^^ 

2T  In  Swinton  v.  Bailey,  4  App.  Cas.  70  (1878),  Lord  Penzance  expressed 
the  opinion  that  part  of  a  will  may  be  revoked,  even  if  the  effect  is  to  increase 
the  gifts  to  others  who  take  under  the  will.  The  same  opinion  Is  expressed 
in  Collard  v.  Collard  (N.  J.  Prerog.)  67  Atl.  190  (1907).  See,  also.  Larkins  v. 
Larkins,  3  B.  &  P.  16  (1802) ;  In  re  Coyte,  50  L.  T.  (N.  S.)  510  (1887) ;  In  re 
Frothingham's  Will  (N.  J.)  74  Atl.  471  (1909).  But  see,  contra,  Eschbach  v. 
Collins,  61  Ua.  478,  48  Am.  Rep.  123  (1881),  and  ^Miles'  Appeal.  68  Conn.  237, 
36  Atl.  39,  36  L.  R.  A.  176  (1896).  See,  also,  Gardner  v.  Gardiner,  65  N.  H. 
230,  19  Atl.  651,  8  L.  R.  A.  383  (1SS9) ;  Pringle  v.  McPherson,  2  Brev.  (S.  C.) 
279,  3  Am.  Dec.  713  (1809). 

In  Swinton  v.  Bailey,  supra,  the  testator  reduced  a  gift  to  "Elizabeth  Ely, 
her  heirs,  and  assigns  forever,"  from  a  fee  to  a  life  estate  by  striking  out  the 
words  "Ely,  her  heirs,  and  assigns,"  and  the  reduction  was  upheld.  In  Esch- 
bach V.  Collins,  supra,  where  the  will  as  originally  executed  gave  life  estates 
to  all  the  sons  except  two,  the  testator,  by  erasing  the  names  of  the  two, 
made  the  will  read,  in  the  opinion  of  a  majority  of  the  court,  that  all  the 
sons  should  take  absolutely,  and  in  consequence  the  court  gave  effect  to  the 
will  as  originally  written  and  executed.  In  Home  of  the  Aged  v.  Bantz,  107 
Md.  543,  69  Atl.  376  (1908),  it  is  held  that  cancellation  of  portions  of  a  will 
does  not  revoke  the  whole  will,  where  the  remaining  parts  can  stand  alone. 


272  LAST  WILLS   AND  TESTAMENTS,  (Part  1 


SECTION  4.— SO-CALLED  REVOCATION  BY  CIRCUM- 
STANCES 


DOE  d.  WHITE  v.  BARFORD. 
(Court  of  King's  Bench,  1815.     4  M.  &  S.  10.) 

At  the  trial  of  this  ejectment,  before  Heath,  J.,  at  the  last  Cam- 
bridgeshire Assizes,  the  case  was  this  : 

The  plaintiff  claimed  under  the  will  of  one  J.  Bonteel,  who,  being 
seised  in  fee  in  1791,  married,  and  in  1792  made  his  will,  and  devised 

and  is  pointed  out  that  Eschbach  v.  Collins,  supra,  recognized  that  a  testator 
may  revoke  by  cancellation  one  or  more  clauses  in  his  will  without  invalidat- 
ing the  rest,  "if  such  revocation  does  not  operate  to  enlarge  the  estate  of 
any  one  who  takes  under  the  will,  or  to  change  the  character  of  the  remain- 
ing provisions  of  the  instrument."  107  Md.  555,  69  Atl.  379.  In  Miles'  Ap- 
peal, supra,  the  refusal  of  the  lower  court  to  give  effect  to  the  cancellation 
of  a  specific  legacy  to  the  increase  of  the  residue  was  first  supported  on  the 
ground  that  the  evidence  failed  to  show  that  the  cancellation  was  by  the 
testatrix  or  in  her  presence  as  required  by  the  statute  (substantially  the 
Statute  of  Pi'auds  provision),  and  then  the  court  went  on  to  say:  "It  would 
perhaps  be  too  strict  a  construction  of  the  statute  referred  to.  if  we  held  that 
under  no  circumstances  could  there  exist  :i  partial  revocation  of  a  will  or 
codicil,  effected  by  burning,  canceling,  tearing  or  obliteration ;  that  such  rev- 
ocation must  extend  to  the  whole  instrument  and  be  operative  to  revoke  the 
whole,  or  be  without  effect.  Such  a  construction  has  indeed  been  given  to 
very  similar  statutory  provisions  in  several  other  jurisdictions.  But  prob- 
ably the  weight  of  authority  upon  the  question  is  otherwise.  The  entire  sub- 
ject is  most  exhaustively  and  ably  treated  in  a  note  to  the  case  of  Graham  v. 
Burch.  28  Am.  St.  rU'i>.  ol-l.  i'.ut.  oix  the  ot'ier  oaiid,  if  we  were  to  declure, 
following  the  language  of  the  opinion  often  cited  in  Bigelow  v.  Gillott.  123 
Mass.  102  [25  Am.  Rep.  32],  that  the  authority  to  revoke  an  entire  will  In- 
clud(Hi  the  lesser  power  to  revoke  any  portion  of  it  only,  and  to  stop  there,  as 
the  court  In  Massachusetts  does,  it  seems  to  us  that  an  inference  miirbt  be 
drawn  that  would  extend  entirely  too  far.  For,  if  such  conclusion,  looking 
at  the  statute  in  question  alone,  might  be  drawn,  there  is  another  statute  ap- 
pearing upon  the  same  page  of  the  General  Statutes,  namoly  section  ,")3S.  pro- 
viding how  wills  must  be  executed.  If  a  case  arises  which  is  simply  and 
purely  one  of  revocation,  section  5;^S  will  not  apply.  But  if  such  revocation 
involves  alteration,  it  certainly  must  apply.  The  difference  in  meaning  be- 
tween the  two  terms  is  aptly  stated  by  Mollish,  L.  J.,  in  Swinton  v.  Bailey.  45 
L.  J.  Ex.  427,  where  a  testator  by  his  will  had  devised  his  real  estate  to  E.,  'her 
heirs  and  assigns  forever.'  He  subseipiently  obliterated  these  words  with  pen 
and  ink.  The  judge  said  (p-age  429):  'The  difference  between  revocation  and  al- 
teration seems  to  me  to  be  this:  if  what  is  done  simply  takes  away  what  was 
given  before  or  a  part  of  what  was  given  before,  then  It  is  revocation,  but  if 
it  gives  something  In  ad<litir)n,  or  gives  something  else,  tlien  it  is  more  tlian 
revocation  and  cannot  be  done  by  mere  ol)literation.'  In  Ii!schbach  v.  Collins, 
61  Md.  478  [48  Am.  Rep.  12.'>J,  is  an  able  discussion  of  this  matter.  In  that 
case  the  effect  of  erasures  was  to  enlarge  the  estates  of  the  devisees  from 
life  estates  to  fees.  The  court  held  sucli  erasures  inoperative  under  a  statute 
which  provided  that  a  will,  or  any  clause  thereof,  might  be  revoked  by  can- 
cellation. The  court  said  (page  409):  'Tiie  will  has  not  been  revoked;  it  has 
been  altered.  It  cannot  be  supposed  that  when  the  Legislature  uses  the  word 
"revocation,"  it  is  to  be  construed  to  mean  "mutation."  *  *  *  When  by 
the  obliteration  of  certain  words  a  different  meaning  is  imparted  there  is  not 


Ch.  7)  THE   RE3V0CATI0N  OF  WILLS.  273^ 

the  premises  in  question  to  his  niece,  from  whom  the  plaintiff  derived 
title..  J.  B.  died  leaving  his  wife  enseint.  which  was  unknown  to  either 
of  them  at  the  time  of  his  death,  and  afterwards  the  wife  was  delivered 
of  a  daughter,  from  whom,  as  heir  at  law,  the  defendants  derived  title. 
And  the  question  was,  Whether  this  alteration  of  circumstances  was  an 
implied  revocation  of  the  will.  The  learned  judge  ruled  that  it  was 
not,  and  there  \yas  a  verdict  for  the  plaintiff. 

And  now  Blosset,  Serjt.,  moved  for  a  nonsuit. 

Lord  Ellenborough,  C.  J.  The  argument  seems  to  be,  that  be- 
cause the  testator,  had  he  known  his  situation,  ought  to  have  revoked 
his  will,  therefore  the  law  will  impliedly  revoke  it.  But  if  it  is  to  be 
understood  that  every  will*  is  made  upon  a  tacit  condition  that  it  shall 
stand  revoked  whenever  the  testator  by  the  circumstance  of  the  birth 

a  mere  revocation.  There  is  something  more  than  the  destruction  of  that 
which  has  been  antecedently  done.  There  is  a  transmutation  by  which  a  new 
clause  is  created.  There  is  another  and  a  distinct  testamentary  disposition 
which  must  be  authenticated  by  the  observance  of  the  statutory  requirements.' 
The  court  gives  as  an  illustration  of  how  fully  such  a  transmutation  might 
be  made  by  mere  erasures,  this  example:  Suppose  the  original  words  were, 
'To  my  son  William  I  give  nothing,  and  give  all  my  estate  to  my  son  John.' 
The  will  with  no  addition  could  be  made  to  read.  'To  my  son  William  I  giv« 
all  my  estate.'  This  may  seem  an  extreme  illustration,  but  probably  there  are 
few  wills  made,  of  any  considerable  length,  in  which  alterations  in  meaning, 
by  mere  erasure,  could  not  be  effected,  as  objectionable,  if  not  as  marked  as 
this.  Indeed,  without  holding  that  there  are  none,  it  seems  to  us  that  there 
are  few  cases  that  could  arise  where  the  revocation  of  a  portion  only  of  a  will, 
would  not  operate  to  alter  other  portions  of  it.  If  an  entire  clause — meaning 
by  that  word  one  of  those  distinct  and  generally  numbered  subdivisions  into 
which  wills  are  frequently  aparted,  or  an  entire  unconnected  provision  mak- 
ing disposition  of  property — be  erased  or  canceled,  and  what  was  thus  dis- 
posed of  becomes  intestate,  it  may  be  said  that  there  is  a  revocation,  and 
nothing  more.  The  same  thing  has  been  affirmed  "by  some  courts  where,  in- 
stead of  such  Intestacy,  the  property  passes  into  a  prescribed  residuum.  But 
this  appears  to  us  to  be  more  questionable.  The  residuary  devisee  or  legatee 
takes  by  virtue  of  the  will,  defeating  the  heir,  and  he  takes  by  force  of  the 
alteration  what  he  did  not  take  without  it.  The  mischief  seems  the  same. 
The  distinction  is  more  apparent  than  the  difference.  Take  the  very  case 
before  us:  There  were  originally  two  clauses.  One  disposed  of  certain  stock  ; 
the  other  of  the  balance  of  the  estate.  By  revoking  the  first,  there  ceased 
to  be  any  residue,  unless  the  estate  in  its  entirety  can  be  so  styled.  But  look 
at  the  object  of  the  change.  Was  it  revocation,  or  was  it  alteration?  One 
of  the  brothers  of  the  testatrix  procured  a  copy  of  the  will  from  another 
brother  who  had  It  in  his  possession.  He  was  apparently  curious  until  he 
knew  its  contents,  and  dissatisfied  when  he  learned  them.  He  said  to  his 
sister,  'By  your  will  you  have  given  my  brother  Charles'  family  twenty-four 
shares  of  the  New  York  and  New  Haven  Railroad  stock,  and  you  have  given 
my  brother  David  and  myself  eight.'  She  said  'I  won't  have  it  so ;  I  will 
scratch  it  out.'  What  was  this  interested  brother's  motive?  To  defeat  his 
nieces  of  their  legacies?  Or  was  it  rather  to  increase  his  own?  What  would 
the  old  lady  'not  have  so'?  That  her  nieces  should  be  remembered,  or  that 
the  families  of  those  brothers  should  be  treated  unequally?  It  seems  to  us 
the  answer  is  obvious,  and  that  to  all  just  intents  and  purposes  here  was  not 
merely  revocation,  but  substitution ;  not  destruction,  but  reconstruction ;  a 
'scratching  out'  indeed,  but  one  equivalent  to  a  writing  in  ;  the  making  of  a 
new  testamentary  disposition,  and  in  a  manner  not  permitted  by  law — a  law 
passed  in  the  interest  of  public  policy,  the  wisdom  of  which  such  a  case  a« 
the  present  abundantly  demonstrates." 

COST.WILLS— 18 


274  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

of  a  child  becomes  morally  bound  to  provide  for  it,  I  do  not  see  why 
the  birth  of  any  one  of  a  numerous  succession  of  children  would  not 
equally  work  a  revocation.  But  where  are  we  to  stop?  Is  the  rule  to 
vary  with  every  change  which  constitutes  a  new  situation  giving  rise 
to  new  moral  duties  on  the  part  of  the  parent?  Marriage,  indeed,  and 
the  having  of  children,  where  both  those  circumstances  have  concur- 
red, has  been  deemed  a  presumptive  revocation,  but  it  has  not  been 
shown  that  either  of  them  singly  is  sufficient,  I  remember  a  case  some 
years  ago  of  a  sailor  who  made  his  will  in  favor  of  a  woman  with 
whom  he  cohabited,  and  afterwards  went  to  the  West  Indies  and  mar- 
ried a  woman  of  considerable  substance ;  and  it  was  held,  notwith- 
standing the  hardship  of  the  case,  that  the  will  swept  away  from  the 
widow  every  shilling  of  the  property;  for  the  birth  of  a  child  must 
necessarily  concur  in  order  to  constitute  an  implied  revocation.  In 
Doe  V.  Lancashire,  5  T.  R.  49,  it  was  adjudged  that  marriage  and  the 
pregnancy  of  the  wife  with  the  knowledge  of  the  husband,  and  the 
subsequent  birth  of  a  posthumous  child,  came  within  the  rule,  the 
same  as  if  the  child  had  been  born  during  the  parent's  life.  In  this 
case  it  is  desired  of  us  to  extend  the  rule  a  step  farther,  but  I  own  I 
am  afraid  of  so  doing. 

Le  Blanc,  J,  Lord  Kenyon  considered  the  rule  as  founded  upon 
a  tacit  condition  annexed  to  the  will,  that  if  the  party  should  marry  and 
have  a  child  it  should  not  take  effect. 

Per  Curiam.    Rule  refused.^® 

2  8  On  "revocation"  of  wills  by  marriage  and  birth  of  Issue,  see  9  Prob. 
Rep.  Ann.  423,  note;  7  Am.  &  Eng.  Ann.  Gas.  786,  note.  But  it  should  be 
remembered  that  statutes  have  been  passed  giving  to  children  born  after  a 
will  and  not  provided  for  therein  certain  inheritance  rights,  even  though  in 
most  jurisdictions  their  birth  does  not  revoke  the  will.  In  Iowa  the  birth 
of  a  child  alone  will  revoke  the  will.  McCullum  v.  McKenzie.  26  Iowa,  510 
(18GS) ;  Negus  v.  Negus,  46  Iowa,  487,  2G  Am.  Rep.  157  (1877).  The  Iowa 
rule  was  adopted  before  there  was  a  statute  on  the  subject.  It  is  now  a 
statutory  matter  there.     Fry  v.  Fry,  125  Iowa,  424,  101  N.  W.  144  (1904). 

In  Re  Del  Genovese's  Will,  56  Misc.  Rep.  418,  107  N.  Y.  Supp.  1033  (1907), 
affirmed  120  N.  Y.  Supp.  1121  (1909),  it  was  held  that  the  will  of  a  man  was 
revoked  by  his  marriage  and  the  subsequent  birth  of  issue,  although  the  wife's 
first  husband  had  the  right  to  have  the  marriage  annulled. 

A  will  has  been  held  revoked  by  a  subsequent  marriage  and  birth  of  a 
child,  although  the  testator  was  married  to  his  first  wife  at  the  time  of 
making  the  will.  Christopher  v.  Christopher,  Dick.  445  (1771).  But  see 
Yerby  v.  Yerby,  3  Call  (Va.)  334  (1802),  In  Gibbons  v.  Caunt,  4  Ves,  840, 
848  (1799)  the  Master  of  the  Rolls  suggested  that  a  revocation  might  be  held 
where  there  was  "the  birth  of  children  by  the  first  wife  after  the  execution 
of  the  will,  and  after  the  death  of  the  wife,  a  subsequent  marriage,  and  no 
children  by  that" 


Ch.   7)  THE  REVOCATION  OF  WILLS.  275 

TYLER  V.  TYLER. 

(Supreme  Court  of  Illinois,  1857.     19  III.  151.) 

Skinner,  J.^"  The  case  shows,  that  Stephen  H.  Tyler,  and  the  com- 
plainant intermarried  in  this  state,  in  1842,  and  here  lived  as  husband 
and  wife  until  his  death  in  1855 ;  that  he  died,  never  having-  had  a 
child,  and  leaving  a  considerable  estate,  real  and  personal,  in  this 
state,  and  that  the  defendants  claim  his  estate  under  a  will  executed 
in  the  state  of  Connecticut,  where  Tyler  then  lived,  in  1834,  which  will 
devises  his  entire  estate  to  his  blood  relatives. 

The  material  question  is  whether  this  will,  by  the  change  of  condi- 
tion of  the  deceased,  is  revoked. 

It  is  essential  to  a  valid  will  that  it  be  the  mind  and  intention  of  the 
maker,  in  relation  to  the  matters  to  which  it  relates,  at  the  time  of  his 
death.  And  an  instrument  executed  in  legal  form,  purporting  to  be  a 
last  will  and  testament,  whenever  made,  is  received  as  the  last  will 
and  purpose  of  the  maker,  until  shown  to  have  been  revoked  in  some 
of  the  ways  known  to  the  law. 

Our  statute  contains  substantially  the  same  provisions  in  relation  to 
revocation  of  wills,  as  the  English  statute  of  29  Charles  II ;  and  the 
courts  of  that  country  have  uniformly  held,  that  marriage  and  the 
birth  of  a  child,  effecting  a  radical  change  in  the  condition,  relation 
and  duties  of  one  who  before  had  made  a  will  providing  for  no  such 
contingency  or  change  of  condition,  by  operation  of  law  and  presump- 
tively revoke  such  will ;  but  that  marriage  alone  will  not  raise  such 
presumptive  revocation.     [Citations  omitted.] 

By  the  law  of  descents,  both  in  England  and  in  this  country,  the 
child  may  inherit  the  parent's  estate ;  but  there  the  wife  is  not  heir  to 
the  husband,  while  here  she,  in  case  there  be  no  child  or  descendant  of 
a  child  of  the  husband,  is  such  heir  and  may  inherit  the  one-half  of  his 
lands. 

The  reason  of  the  law  is  the  essence  and  soul  of  the  law ;  and  the 
reason  of  the  common-law  rule  existing  here  by  force  of  our  statute, 
making  the  wife  heir  to  the  husband  and  the  husband  heir  to  the  wife, 
where  there  is  no  child  or  lineal  descendant  [having  gone],  the  rule 
should  go  with  it. 

Where  a  statute  of  the  mother  country  or  of  a  sister  state  is  adopted 
into  our  law,  the  rule  is  that  with  it  is  adopted  the  construction  of 
such  statute  which,  prior  to  its  adoption,  uniformly  obtained. 

The  wife,  ordinarily,  where  there  are  no  children  to  provide  for,  is 
a  far  more  meritorious  object  of  the  husband's  bounty  than  collateral 
kinsmen,  and  is  presumed  to  engage  more  intensely  his  emotions  of 
interest  and  affection.  It  cannot,  therefore,  be  supposed  that  he  would 
willingly  die  leaving  her  disinherited  and  unprovided  for. 

2  9  The  statement  of  facts  and  the  concurring  opinion  of  Breese,  J.,  are 
omitted. 


276  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

We  hold  that  marriage,  under  our  statute  making  the  wife  heir  to 
the  husband  and  the  husband  heir  to  the  wife,  where  there  is  no  child 
or  descendant  of  a  child,  is,  in  the  absence  of  facts  showing  an  inten- 
tion to  die  testate  arising  subsequent  to  the  marriage,  a  revocation  of  a 
will  of  the  husband,  made  prior  to  the  marriage,  disposing  of  his  en- 
tire estate  without  making  provision  in  contemplation  of  the  relations 
arising  out  of  it. 

Decree  reversed  and  cause  remanded.^" 


SWAN  V.  HAMMOND. 

(Supreme  Judicial  Court  of  Massachusetts,  1884.     188  Mass.  45,  52  Am. 

Rep.  255.) 

CoLBURN,  J.  It  appears  by  the  record  and  agreed  facts  in  this  case 
that  Susan  E.  Haven,  an  unmarried  woman,  made  her  will  May  20, 
1853 ;  that  she  was  then  possessed  of  real  and  personal  estate,  all  of 
which  by  her  will  she  devised  and  bequeathed  to  her  sister,  who  was 
named  as  executrix:  that  on  October  3,  1861,  she  married  Thomas  F. 
Hammond,  and  lived  with  him  until  her  death,  on  January  18,  1883. 
Her  husband  had  no  knowledge  of  the  existence  of  the  will  until  after 

80  See  Colcord  v.  Conroy,  40  Fla.  97,  23  South.  561  (1898) ;  In  re  Teopfer'a 
Estate,  12  N.  M.  372,  78  Pae.  53,  67  L.  R.  A.  315  (1904) ;  Brown  v.  Scherrer, 
5  Colo.  App.  2.55,  38  Pac.  427  (1894);  Scherrer  v.  Brown,  21  Colo.  481,  42 
Pac.  668  (1895).  Compare  In  re  Petridge's  Will,  47  Wash.  77,  91  Pac.  634 
(1907).  But  see  Hoy  v.'  Hoy,  93  Miss.  732.  48  South.  903  (1908) ;  Hulett  v. 
Carey,  66  Minn.  327,  69  N.  W.  31,  34  L.  R.  A.  384,  61  Am.  St.  Rep.  419  (1896). 
In  Hoy  V.  Hoy  the  state  statute  made  the  widow  an  heir,  and  the  court 
said:  "We  think  there  can  be  no  doubt  that  the  decided  weight  of  author- 
ity inclines  to  the  view  that  a  man's  will  is  not  revoked  by  a  subsequent  mar- 
riage without  birth  of  issue.  It  would  protract  this  opinion  to  undue  length 
to  review  in  detail  the  authorities  from  Florida,  Idaho,  Illinois,  New  Mexicx), 
and  Colorado  holding  to  the  contrary  view.  They  are  criticised  in  the  case 
of  Hulett  V.  Carey,  supra.  But  one  general  observation  may  be  made.  All 
of  the  cases,  except  Brown  v.  Scherrer,  supra,  are  decided  in  states  where  an 
unrevoked  will  would  lG.ave  the  widow  without  any  re<lress.  If  it  be  cor- 
rect, as  most  of  the  -\merican  authorities  hold,  that  the  common-law  rule 
ll  based  upon  the  consideration  that.  If  the  will  is  permitted  to  stand,  the 
heir  would  not  receive  any  i»art  of  the  estate,  no  reason  can  exist  why  the 
rule  should  be  altered  in  this  stnte,  since  the  widow  is  well  cared  for  by  the 
ri,i;ht  to  renounce  the  will.  It  is  not  an  accurate  statement  of  the  effect  of 
our  statute  that  the  wife  is  placed  in  the  precise  attitude  of  other  heirs.  She 
Is  more  than  that.  She  has  the  right  to  defeat  absolutely  any  effort  of  the 
husband  to  prevent  her  participation  in  the  estate.  In  this  aspect,  the  right 
of  renunciation  is  akin  to  that  of  dower."  93  Miss.  763,  764,  48  South.  907, 
908  (1908). 

On  the  revocation  of  wills  by  marriage  alone,  see  10  Prob.  Rep.  Ann.  230, 
note.  In  the  Mntter  of  the  Will  of  Esther  R.  Tuller,  79  111.  99,  22  Am.  Rej). 
164  (1875),  the  rule  in  Tyler  v.  Tyler,  sujira,  was  so  qualified  as  not  to  ap- 
ply to  a  case  where  at  the  time  of  the  marriage  the  testator  had  children 
who  under  the  state  statute  would  inherit  to  the  exclusion  of  the  other  par- 
ty to  the  marriage.  The  matter  was  finally  covered  by  statute  making  mar- 
riage alone  a  revocation.  Under  that  act  marriage  revokes  the  whole  will. 
McAnnulty  v.  McAnnulty,  120  111.  26,  11  N.  E.  397,  60  Am.  Rep.  552  (1887) 
Compare  In  re  Larsen,  18  S.  D.  335,  100  N.  W.  738  (1904). 


Ch.  7)  THE  REVOCATION   OF   WILLS.  277 

her  decease.  No  child  was  born  of  the  marriage.  The  will  was  pre- 
sented for  probate  in  Middlesex  by  the  executrix  therein  named,  and 
was  approved  and  allowed  on  April,  1883,  and  the  husband  appealed. 
The  only  question  presented  is  whether  the  will  was  revoked  by  the 
marriage.  ' 

It  has  been  well  settled  by  common  law,  at  least  since  Forse  & 
Hembling's  Case,  4  Coke,  60b,  decided  in  1589,  that  the  marriage  of  a 
feme  sole  revokes  her  will.  In  case  of  a  man  it  is  equally  well  settled 
that  marriage  alone  does  not  revoke  his  will,  but  that  marriage  and 
the  birth  of  a  child  do.  1  Jarm.  Wills,  122 ;  Warner  v.  Beach,  4  Gray, 
162. 

The  reason  why  the  will  of  a  feme  sole  is  revoked  by  her  marriage 
is  commonly  stated  to  be  that  marriage  takes  away  her  testamentary 
capacity,  and  destroys  the  ambulatory  nature  of  her  will ;  and  it  is 
urged  in  argument  that  since  the  statutes  allowing  a  married  woman 
to  make  a  will,  with  certain  limitations  as  to  the  rights  of  the  husband, 
were  passed,  the  reason  upon  which  the  rule  was  founded,  that  the 
will  of  a  feme  sole  is  revoked  by  marriage,  no  longer  exists ;  and  that 
her  will,  like  that  of  a  man,  should  be  held  to  be  revoked,  not  by  mar- 
riage alone,  but  by  marriage  and  the  birth  of  a  child.  This  argument 
is  not  without  force,  but  its  force  would  be  much  greater  if  we  could 
see  any  good  reason  why,  in  the  case  of  a  man,  both  marriage  and  the 
birth  of  a  child  should  be  held  necessary  for  the  revocation  of  his  will. 
The  rule  was  adopted  from  the  civil  law,  and  is  now  firmly  established 
as  part  of  the  common  law ;  but  the  reasoti  upon  which  it  is  founded  is 
not  obvious. 

Marriage  alone,  in  the  case  of  a  man  or  woman,  would  seem  to  be  a 
sui^cient  change  in  condition  and  circumstances  to  cause  an  implied 
revocation  of  a  will  previously  made.  A  will  made  before  marriage, 
and  taking  effect  after  marriage,  must  take  effect  in  a  very  different 
manner  from  that  in  the  mind  of  the  testator  when  the  will  was  made. 
The  rights  of  the  husband  or  wife  must  greatly  modify  its  provisions; 
and  it  can  hardly  be  supposed  that  an  unmarried  person  would  make 
the  same  will  he  or  she  would  make  after  marriage.  If  we  were  un- 
der no  restraint,  we  might  well  hesitate  to  hold  that,  since  testa- 
mentary capacity  has  been  given  to  women,  a  will  made  by  a  woman 
when  sole  should  be  revoked  only  by  marriage  and  the  birth  of  a 
child,  as  in  case  of  a  man,  for  the  sake  of  uniformity  only,  when  we 
are  inclined  to  think  a  better  rule  would  be  that  in  case  of  a  man 
his  will  should  be  revoked  by  marriage  alone.  But  such  a  rule  can 
only  be  introduced  by  the  Legislature.  In  England,  by  St.  7  Wm.  IV. 
and  1  Vict.  c.  26,  §  18,  and  in  many  of  the  states  in  this  country,  it 
has  been  provided  by  statute  that  the  wills  of  both  men  and  women 
shall  be  revoked  by  marriage.  See  collection  of  statutes  in  1  Jarm. 
Wills  (oth  Am.  Ed.,  by  Bigelow,)  122,  note. 

But  we  are  of  the  opinion  that  the  question  now  before  us  has  been 
so  far  settled  by  statute  as  not  to  admit  of  change  by  construction. 


278  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

Section  8,  c.  127,  Pub.  St.,  after  providing  that  no  will  shall  be  re- 
voked,  unless  by  burning,  tearing,  etc.,  or  some  other  writing  executed 
in  the  manner  required  in  the  case  of  a  will,  goes  on  as  follows :  "But 
nothing  contained  in  this  section  shall  prevent  the  revocation  implied 
by  law  from  subsequent  changes  in  the  condition  or  circumstances  of 
the  testator,"  It  is  not  apparent  that  an  entire  revocation,  by  implica- 
tion of  law,  results  from  any  change  of  condition  or  circumstances 
except  that  of  a  subsequent  marriage.  See  the  discussion  in  Warner 
V.  Beach,  ubi  supra. 

This  clause  as  to  implied  revocations  was  first  introduced  into  Rev. 
St.  c,  62,  §  9.  The  other  provisions  as  to  revocation  were  substantially 
taken  from  St.  1783,  c.  24,  §  2.  The  commissioners  in  their  note  to  this 
section  say:  "The  clause  as  to  implied  revocations  recognizes  and 
adopts  the  existing  law,  as  established  and  understood  among  us." 
And  their  further  discussion  of  this  subject  shows  clearly  that  they 
had  in  mind  the  rule  of  the  common  law,  that,  in  case  of  a  man,  mar- 
riage and  the  birth  of  a  child,  and,  in  case  of  a  woman,  marriage 
alone,  revoked  a  will  previously  made. 

We  are  of  opinion  that  this  provision  as  to  implied  revocations,  from 
its  language,  and  the  reasons  given  for  its  introduction,  has  substan- 
tially the  force  of  an  express  enactment  of  the  rules  of  the  common 
law,  which  we  are  not  at  liberty  to  change,  even  if  the  reason  for  the 
rule,  in  case  of  a  woman,  no  longer  exists.  This  was  the  view  taken 
in  Brown  v.  Clark,  77  N.  Y.  369,  upon  a  similar  question,  under  a  stat- 
ute of  New  York. 

We  are  therefore  of  opinion  that  the  will  of  Susan  E.  Hammond 
was  not  properly  admitted  to  probate.  Decree  of  probate  court  re- 
versed.^^ 


DURFEE  v.  RISCH. 

(Supreme  Court  of  Michigan,  1905.    142  Mich.  504,  105  N.  W.  1114,  5  L.  R.  A. 

[N.  S.]  1084.) 

Montgomery,  J.  On  appeal  from  the  probate  court,  the  circuit 
judge  directed  a  verdict  admitting  the  will  in  question  to  probate. 
Contestant  appeals. 

Testatrix,  while  unmarried,  executed  the  will  in  question.  She  sub- 
sequently married,  and  had  issue,  one  child,  who  survives.  The  sole 
question  is  whether  the  will  of  a  single  woman  is  revoked  by  her  sub- 
sequent marriage,  followed  by  the  birth  of  a  child  or  children.     Our 

81  See  Nutt  v.  Norton,  142  Mass.  242,  7  N.  B.  720  (ISSO) ;  In  re  Petridge's 
Will,  47  Wash.  77,  91  Pae.  634  (1907).  But  see  Emery,  Appellant,  81  Me.  275, 
17  Atl.  68  (1889),  holding  that,  the  reason  for  the  old  rule  having  ceased,  the 
marriage  of  a  feme  sole  no  longer  revoked  her  will. 

That  the  will  of  a  single  woman  is  revoked  bj'  her  marriage,  at  least  to  the 
extent  her  husband  would  be  excluded  from  curtesy,  is  asserted  In  Vandeveer 
T.  Higgins,  59  Neb.  333,  80  N.  W.  1043  (1899). 


Ch.  7)  THE   REVOCATION   OF   WILLS.  279 

Statute  of  wills  (section  9270,  Comp.  Laws),  which  prescribes  the 
formalities  required  for  the  revocation  of  wills,  provides  that  "noth- 
ing contained  in  this  section  shall  prevent  the  revocation  implied  by- 
law from  subsequent  changes  in  the  condition  or  circumstances  of  the 
testator." 

There  is  no  doubt  that  at  the  common  law  the  marriage  of  a  male 
testator,  followed  by  birth  of  issue,  operated  to  revoke  a  will.  This 
revocation  was  implied  from  the  changed  relations  and  obligations  of 
the  testator,  and  was  based  upon  the  presumption  that  had  the  same 
conditions  and  obligations  existed  at  the  time  of  the  execution  of  the 
will  and  been  taken  into  account,  a  different  will  (if  any)  would  have 
been  made.  Page  on  Wills,  §  282 ;  Woerner's  Am.  Law  of  Adminis- 
tration (2d  Ed.)  §  5-i.  It  is  difficult  to  suggest  any  reason  why  the 
same  implication  of  a  revocation  should  not  arise  in  case  of  a  female 
testatrix.  The  presumption  that,  had  the  same  conditions  existed  at 
the  time  of  the  execution  of  the  will  as  existed  later,  the  disposition 
of  the  estate  would  have  been  different,  is  certainly  as  strong  in  the 
case  of  a  wife  and  mother  as  in  case  of  a  husband  and  father. 

The  proponent  argues  that  the  rule  as  to  the  revocation  of  the  will 
of  a  female  was,  at  the  common  law,  that  her  subsequent  marriage 
alone  revoked  the  will;  that  since  by  statute  a  married  woman  may 
now  make  a  valid  will,  and  since  it  is  generally  held  that  the  effect  of 
this  statute  is  to  abrogate  the  rule  that  marriage  alone  (in  the  case 
of  a  woman)  revokes  the  rule,  it  follows  that  there  is  left  no  common- 
law  rule  upon  which  a  revocation  of  a  will  by  a  female  can  be  predi- 
cated. This  is  ingenious,  but  not  convincing.  It  is  true  that  the  weight 
of  authority  sustains  the  view  that,  where  statutes  like  our  Married 
Woman's  Act  (section  8690)  exist,  marriage  of  a  feme  sole  does  not 
of  itself  operate  to  revoke  the  will.  Kelly  v.  Stevenson,  85  Minn.  24:7, 
88  N.  W.  739,  56  L.  R.  A.  754,  89  Am.  St.  Rep.  545 ;  In  re  Will  of 
Ward,  70  Wis.  251,  35  N.  W.  731,  5  Am.  St.  Rep.  174.  This  is  the 
rule  in  this  state.  Noyes  v.  Southworth,  55  Mich.  173,  20  N.  W.  891, 
54  Am.  Rep.  359. 

The  common-law  rule  as  to  the  implied  revocation  resulting  from 
marriage  of  the  testatrix  rested  upon  the  ground  that,  after  marriage, 
she  could  not  make  a  new  will,  and  as  a  will  is  ambulatory  during  the 
life  of  the  testator,  the  continuing  purpose  to  continue  the  will  pre- 
viously made  in  force  could  not  be  presumed  from  mere  inaction  on 
the  part  of  one  who,  because  of  disability,  could  not  act.  Where,  as 
in  this  state,  the  reason  for  this  rule  fails,  the  rule  fails.  It  does  not 
follow,  however,  because  the  marriage  alone  does  not  revoke  the  will, 
that  marriage  and  birth  of  issue  do  not.  The  abrogation  of  this  rule 
places  the  male  and  the  female  on  the  same  plane  as  to  this;  i.  e., 
that  the  subsequent  marriage  does  not  of  itself  revoke  the  will.  But  it 
is  illogical  to  say,  because  the  existence  of  a  more  restricted  rule  to 
the  wills  of  females  prevented  the  application  of  the  general  rule  of 
the  common  law,  that  such  rule  should  not  be  applied  to  male  and  fe- 


280  LAST   WILLS   AND   TESTAMENTS.  (Part   1 

male  alike,  when  the  removal  of  the  latter's  disability  makes  the  gen- 
eral rule  applicable. 

As  was  said  of  a  similar  question  in  Lansing  v.  Haynes,  95  Mich. 
16,  54  N.  W.  699,  35  Am.  St.  Rep.  545,  the  common  law  is  not  so  un- 
bending as  to  lead  to  this  result.  "The  reason  of  the  law  is  the  es- 
sence and  soul  of  the  law."  In  Noyes  v.  Southworth,  supra,  it  was 
said :  "Our  Constitution  has  done  away  with  all  disabilities  of  cover- 
ture, and  expressly  authorized  every  married  woman  to  make  wills  of 
her  estate  as  if  she  were  sole.  This  leaves  her  case  to  be  governed 
by  the  same  rule  which  would  apply  to  any  one  else  on  change  of  con- 
dition. *  *  *  There  is  no  sound  reason  that  we  can  perceive  why, 
in  the  absence  of  statute,  implied  revocations  should  be  extended,  or 
should  be  differently  treated  as  between  men  and  women,  when  the 
property  rights  of  married  women  have  ceased  to  be  hampered  by 
marriage." 

But  it  is  further  insisted  that,  as  section  9285  makes  provision  for  a 
child  born  after  the  making  of  his  father's  will,  the  rule  that  marriage 
and  birth  of  a  child  revokes  a  will  previously  made  by  the  father  is 
abrogated.  It  is  contended  that  this  provision  applies  only  to  a  man's 
will,  and  it  was  so  held  in  Cotheal  v.  Cotheal,  40  N.  Y.  405 ;  but  it  is 
at  the  same  time  urged  that,  inasmuch  as  the  rule  as  applied  to  a 
woman's  will  is  applied  by  analogy,  it  follows  that  if  the  statutes  have 
abrogated  the  rule  as  to  men  it  follows  that  the  rule  has  to  women 
no  existence.  This  contention  does  not  take  account  of  the  fact  that 
we  are  to  apply  a  principle  of  the  common  law,  and  that  that  principle 
is  not  affected  by  the  withdrawal  of  a  class  of  persons  from  those  to 
be  affected  by  its  operation.  We  regard  this  principle  of  the  common 
law  as  controlling,  and  hold  that  the  marriage  of  the  testatrix  and 
subsequent  birth  of  a  child  to  her  resulted  in  a  revocation  by  operation 
of  law. 

The  judgment  is  reversed,  and  a  new  trial  ordered. 


In  re  McLARNEY'S  ESTATE. 

(Court  of  Appeals  of  New  York,  1897.    153  N.  Y.  418,  47  N.  B.  817,  60  Am. 

St.  Rep.  6G4.) 

O'Brien,  J.  The  decree  of  the  surrogate  admitting  the  will  of 
the  deceased  to  probate  is  questioned  upon  one  ground  only,  and  that 
is  that  the  will  was  revoked  prior  to  the  death  of  the  testatrix. 

The  will  was  made  on  the  23d  day  of  July,  1884,  and  the  deceased 
fvas  then  a  married  woman-,  the  wife  of  one  Brophy,  who  died  on  the 
20th  of  January,  1889.  On  the  5th  of  February,  1894,  the  testatrix, 
being  then  a  widow,  married  the  contestant,  James  E.  McLarney,  and 
she  died  on  the  19th  of  April,  following  the  marriage.  There  was  no 
issue  of  either  marriage. 


Ch.   7)  THE   REVOCATION   OF   WILLS.  281 

When  the  will  in  question  was  made,  the  deceased  was  a  married 
woman  living  with  her  husband;  and  the  contention  is  that  as  she 
subsequently  became  a  widow,  and  remarried,  her  last  marriage  oper- 
ated to  revoke  the  will  previously  made. 

That  the  deceased  made  a  valid  will  in  writing  is  not  disputed,  and, 
in  order  to  show  a  revocation,  the  burden  was  upon  the  contestant 
to  bring  the  case  within  some  provision  of  the  statute  which  defines 
the  cases  in  which  written  wills  are  deemed  to  be  revoked.  The  stat- 
ute provides  that  "a.  will  executed  by  an  unmarried  woman  shall  be 
deemed  revoked  by  her  subsequent  marriage."  2  Rev.  St.  p.  64,  §  44. 
The  deceased  was  not  an  unmarried  woman  when  she  made  the  will. 
She  was  a  married  woman,  who  subsequently  became  a  widow,  and 
remarried.  The  case  is  not  therefore  within  the  rule  or  the  reason  of 
the  rule  that  the  will  of  an  unmarried  female  is  revoked  by  her  subse- 
quent marriage. 

The  statute  on  this  subject  is  simply  declaratory  of  the  common  law. 
The  marriage,  as  a  general  rule,  vested  the  husband  with  the  title  to 
the  property  of  the  wife,  and  she  lost  her  capacity  to  dispose  of  it  by 
will  or  otherwise.  Since  a  testamentary  instrument,  from  its  very 
nature,  can  operate  only  after  death,  and  is  subject  to  change  during 
life,  it  was  wholly  inconsistent  with  the  relations  of  husband  and  wife 
as  they  existed  at  common  law  when  made  by  the  wife  before  mar- 
riage. An  instrument  which  disposed  of  her  property  after  death, 
and  which  she  was  incapable  of  changing  or  revoking  during  cover- 
ture, could  not  legally  exist  under  the  rules  of  law  that  governed  the 
marriage  relations.  It  was  supposed  to  be  destructive  of  that  complete 
unity  of  husband  and  wife  which  was  the  theory  of  the  common  law, 
and  therefore  upon  her  marriage  it  was  deemed  to  be  completely  re- 
voked. 

The  reason  of  the  rule  was  very  clearly  stated  by  Lord  Chancellor 
Thurlow  in  Hodsden  v.  Lloyd,  2  Brown,  Ch.  534,  as  follows:  "It  is 
contrary  to  the  nature  of  the  instrument,  which  must  be  ambulatory 
during  the  life  of  the  testatrix;  and  as,  by  the  marriage,  she  disables 
herself  from  making  any  other  will,  this  instrument  ceases  to  be  of 
that  sort,  and  must  be  void." 

This  rule  was  incorporated  in  our  statute  law  (2  Rev.  St.  p.  64,  § 
44)  at  the  time  when  a  married  woman  was  incapable  of  making  a  will, 
and,  of  course,  it  was  not  intended  to  have  any  application  whatever 
to  testamentary  instruments  made  during  coverture.  Since  the  dis- 
abilities of  married  women  to  dispose  of  property  by  will  have  been 
removed  in  this  state  by  legislation,  the  reason  of  the  rule  no  longer 
exists,  though  it  remains  a  part  of  the  statute  law.  It  has  been  held 
by  this  court  that  it  was  not  abrogated  by  the  subsequent  legislation 
conferring  testamentary  capacity  upon  married  women,  and  removing 
the  reason  of  the  rule  at  common  law.  The  courts  cannot  dispense 
with  a  statutory  rule  merely  because  it  appears  that  the  policy  upon 
which  it  was  established  has  ceased.    The  Legislature  might  very  prop- 


282  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

erly  remove  it  from  the  statute  book  by  repeal,  but  in  the  meantime  it 
cannot  be  disregarded  by  the  courts.     Brown  v.  Clark,  77  N.  Y.  369. 

But  it  would  seem  to  be  clear  that  we  ought  not  to  extend  the  opera- 
tion of  an  ancient  rule  when  all  the  reasons  upon  which  it  was  founded 
have  passed  away,  or  apply  it  to  a  case  which  was  not  originally  within 
its  terms  or  its  general  policy.  After  the  long  struggle  in  the  courts, 
where  it  was  assailed  as  a  useless  relic  of  the  past,  that  had  been  swept 
away  in  the  current  of  modern  legislation,  there  is  no  good  reason 
for  giving  it  new  life  and  vigor  by  deciding  that  it  is  still  not  only 
potent  enough  to  annul  the  will  of  an  unmarried  female,  but  that  of  a 
married  woman  as  well. 

The  courts  of  this  state,  when  dealing  with  the  subject  of  wills  and 
their  revocation,  have  always  adhered  closely  to  the  terms  of  the  stat- 
ute. This  is  illustrated  not  only  by  the  case  above  cited,  but  by  others, 
notably  where  it  was  held  that  the  provision  of  the  statute  which  re- 
vokes a  will  in  favor  of  an  afterborn  child  had  no  application  to  the 
will  of  a  married  woman  under  the  act  of  1849.  Cotheal  v.  Cotheal, 
40  N.  Y.  405.  So,  also,  in  a  more  recent  case  it  was  held  that  a  will 
made  by  a  widow  was  the  testamentary  act  of  an  unmarried  woman, 
and  revoked  by  her  subsequent  marriage.  In  re  Kaufman,  131  N.  Y. 
620,  30  N.  E.  342,  15  L.  R.  A.  292. 

In  the  case  at  bar  the  testatrix  could  have  revoked  her  will  at  any 
time  before  her  death,  or  could  have  made  a  new  will,  and  hence  none 
of  the  reasons  upon  which  the  statute  was  based  have  any  application 
to  this  case. 

The  learned  counsel  for  the  contestant  admits  that  he  cannot  suc- 
ceed in  this  appeal  unless  the  language  of  the  act  of  1849,  removing 
the  disabilities  of  married  women,  sustains  his  contention.  By  that 
statute  a  married  woman  is  enabled  "to  convey  and  devise  real  and 
personal  estate  *  *  *  jn  the  same  manner  and  with  like  effect 
as  if  she  were  unmarried."  The  argument  is  that,  since  the  will  of  a 
married  woman  is  to  be  made  in  the  same  manner  and  with  like  effect 
as  if  she  were  unmarried,  the  instrument  must  carry  with  it  all  the 
incidents  and  qualities  that  pertain  to  the  will  of  a  feme  sole,  including 
the  possibility  of  revocation  by  .a  subsequent  marriage. 

This,  we  think,  would  be  straining  the  words  of  the  statute  to  in- 
graft upon  it  an  ancient  rule  of  revocation,  that  never  had  any  appli- 
cation to  the  class  of  wills  therein  mentioned.  The  purpose  of  the 
act  was  to  enable  a  married  woman  to  make  a  will,  and  it  had  no  ref- 
erence to  methods  of  revocation.  A  will  has  no  effect  whatever  until 
death,  and  the  words  "like  effect"  relate  to  the  instrument  after  it 
becomes  effective  by  death.  The  meaning  of  the  words  is  that,  when 
the  will  of  a  married  woman  becomes  operative  by  her  death,  it  shall 
have  the  same  effect — that  is,  the  same  disposing  power  and  legal  oper- 
ation as  an  instrument  for  the  transfer  of  the  title  to  property — that 
it  would  had  she  never  been  married.  Nothing  was  said  or  implied 
with  respect  to  revocation.    That  subject  was  left  to  <Jie  general  rules 


Ch.   7)  THE   REVOCATION  OP  WILLS.  283 

of  law  applicable  to  all  wills.  If  the  legislature  intended  that  her  will 
should  be  deemed  revoked  in  case  of  a  second  marriage,  it  would,  no 
doubt,  have  said  so.  In  the  absence  of  some  positive  law,  such  a  result 
cannot  be  ingrafted  upon  a  statute,  the  primary  purpose  of  which  was 
to  remove  the  common-law  disabilities  of  marriage. 

The  judgment  below  was  right,  and  should  be  affirmed,  with  costs. 
All  concur,  except  Gray,  J.,  absent,  and  Haight,  J.,  dissenting.  Judg- 
jnent  affirmed.^^ 


MEANS  V.  URY. 

(Supreme  Court  of  North  Carolina,  1906.     141  N.  C.  248,  53  S.  E.  850.) 

.'  Brown,  J.  Cameline  Means,  while  the  wife  of  Ephriam  Means, 
made  her  will,  and  some  time  thereafter,  being  a  widow,  married  Jason 
Carr,  and  during  such  coverture  verbally  declared  said  paper  writing 
to  be  her  last  will  and  testament  without  any  further  execution  thereof, 
in  accordance  with  the  statute.  The  court  below  adjudged  the  paper 
writing  not  to  be  the  last  will  and  testament  of  Cameline  Means,  upon 
the  ground  that  it  was  revoked  by  her  subsequent  marriage,  and  that 
her  verbal  declarations  could  not  constitute  a  re-execution  and  republi- 
cation of  it. 

We  think  the  ruling  sound.  In  respect  to  her  capacity  to  make  a 
will,  the  feme  covert  stands  upon  the  same  footing  as  the  feme  sole. 
Her  will  is  revoked  by  a  subsequent  marriage,  as  much  so  as  if  she 
were  a  feme  sole  when  she  made  it,  and  then  married.  The  right  of 
a  married  woman  to  make  a  will  is  guarantied  by  the  Constitution, 
but  that,  in  no  way,  affects  the  statute  declaring  that  such  a  will  may 
be  revoked  by  another  marriage  contracted  after  the  will  was  maj 
Revisal  1905,  §  3116.    Affirmed 


BALDWIN  et  al.  v.  SPRIGGS. 
(Court  of  Appeals  of  Maryland,  1886.     65  Md.  373,  5  Atl.  295.) 

Proceedings  to  probate  a  will  claimed  to  have  been  revoked  by  the 
testator's  subsequent  marriage,  and  the  birth  of  surviving  issue.  De- 
cree for  contestant,  and  proponent  appeals. 

Stone,  J.  There  is  no  dispute  about  the  material  facts  in  this  case. 
James  Spriggs,  of  Anne  Arundel  county,  on  the  twenty-fifth  of  July, 
1865,  duly  executed  his  will.  By  that  will  he  disposed  of  all  the  prop- 
erty, real  and  personal,  which  he  then  owned.  James  Spriggs,  at  the 
time  of  the  execution  of  the  said  will,  had  a  wife,  Ruth  Spriggs,  then 
living,  and  several  children  by  her  also  living.    By  his  said  will  he  de- 

82  See  Iix  re  Comassi,  107  Cal.  1,  40  Pac.  15,  28  L.  R.  A.  414  (1895). 


284  LAST  WILLS  AND  TESTAMENTS.  (Part   1 

vised  all  his  property  to  said  wife  and  children.  His  wife,  Ruth,  died 
in  1871,  and  said  James,  soon  after  the  death  of  said  Ruth,  about  1874, 
intermarried  with  Maggie  E.  Vane,  and  also  had  by  her  several  chil- 
dren. Said  James  Spriggs  died  in  January,  1886,  leaving  a  widow, 
the  said  Maggie  E.  Spriggs,  and  the  children  of  both  said  Ruth  and 
Maggie  E.  surviving  him.  After  the  execution  of  the  will  the  said 
James  Spriggs  purchased  certain  other' real  estate  which  was  unaffected 
by  said  will.  His  will,  as  to  his  real  estate,  contained  no  residuary 
clause,  but  disposed  of  all  the  real  estate  he  owned  at  its  date,  by  spe- 
cific description.  After  the  death  of  James  Spriggs  his  will  was  offer- 
ed for  probate  in  the  orphans'  court  of  Anne  Arundel  county,  and  a 
caveat  was  filed  thereto  by  his  second  wife,  Maggie  E.  Spriggs,  in 
behalf  of  herself  and  her  children,  and  upon  such  caveat  plenary  pro- 
ceedings were  had,  and  the  orphans'  court  ordered  and  decreed  that 
said  will  was  revoked  by  his  subsequent  marriage  and  the  birth  of 
issue,  and  refused  to  admit  the  paper  to  probate.  From  this  decree 
the  children  of  the  first  wife  have  appealed  to  this  court. 

These  are  all  the  facts  necessary  to  elucidate  the  legal  proposition 
which  we  are  called  upon  to  decide,  and  which  is  simply  whether,  upon 
this  state  of  the  facts,  the  will  of  James  Spriggs  has  been  revoked  by 
operation  of  law.  It  would  be  a  profitless  task  to  review  all  the  Eng- 
lish cases  on  this  subject.  They  may  be  found  by  the  curious  fully 
discussed  by  Chancellor  Kent  with  his  usual  ability  in  the  case  of 
Brush  V.  Wilkins,  4  Johns.  Ch.  (N.  Y.)  506.  It  is  enough  for  us  to  say 
that,  after  a  good  deal  of  doubt  and  hesitation,  it  was  finally  settled  in 
England,  before  our  Revolution,  that  marriage  and  issue  taken  together 
did  amount  to  an  implied  revocation  of  a  will  previously  made,  and 
that  such  implied  revocations  were  not  within  the  statute  of  frauds, 
but  that  such  implied  revocations  might  be  rebutted  and  controlled  by 
circumstances.  The  final  determination  of  the  matter  seems  to  have 
been  reached  by  the  cases  of  Christopher  v.  Christopher  (decided  by 
the  Court  of  Exchequer,  Parker,  C.  B.,  presiding,  in  1771)  2  Dickens, 
445,  and  in  the  case  of  Spraage  v.  Stone  (decided  in  1773)  Amb.  721. 
These  cases  appear  to  have  definitely  settled  the  law  that  a  subsequent 
marriage  and  birth  of  a  child,  standing  alone,  and  unaccompanied  by 
other  circumstances,  amount  to  an  implied  revocation  of  a  will. 

The  whole  subject,  says  Chancellor  Kent,  has  continued  to  receive 
great  discussion  in  the  English  courts  since  the  era  of  our  Revolution, 
growing  out  of  new  cases  constantly  arising  amidst  the  endless  variety 
of  human  affairs.  The  most  important  of  the  English  cases  since  the 
Revolution  is  the  case  of  Marston  v.  Fox  (decided  in  1838  by  14  out 
of  the  15  English  judges)  8  Adol.  &  E.  14,  where  the  general  doctrine 
we  have  stated  was  reaffirmed.  We  will  recur  to  this  case  again  for 
another  purpose.  But  we  are  not  without  decisive  authority  in  our 
own  state.  The  unreported  case  of  Sedwick  v.  Sedwick,  decided  at 
June  term,  1814,  was  a  case  similar  to  the  one  at  bar.  And  the  Court 
of  Appeals  decided  that  the  subsequent  marriage,  and  birth  of  a  child. 


Ch.  7)  THE  REVOCATION  OP   WILLS.  285 

did  revoke  the  will,  and  they  affirmed  the  decree  of  the  orphans'  court 
refusing  it  probate.  No  opinion  was  filed  in  the  case,  although  a  large 
amount  of  property  was  involved,  and  the  case  was  argued  by  some  of 
the  most  eminent  counsel  in  Maryland.  But  they  did  flatly  decide  the 
question  by  a  decree  declaring  the  will  revoked  by  the  subsequent  mar- 
riage and  birth  of  a  child. 

But  while  such  is  the  general  rule,  like  other  general  rules,  it  has 
been  held  in  England  subject  to  some  exceptions.  Among  the  excep- 
tions is  the  one  where  the  testator  has  made  provision  for  his  children 
born  after  the  execution  of  the  will.  As  the  origin  of  the  rule  was 
the  duty  of  the  parent  to  provide  for  his  offspring,  this  exception  seems 
right  and  proper.  Another  matter  upon  which  the  English  courts  have 
exercised  themselves  is  the  determination  of  the  ground  upon  which 
the  doctrine  of  implied  revocation  ought  to  be  rested.  This  is  of  prac 
tical  importance  in  this  case,  and  will  require  some  examination.  Lord 
Mansfield,  in  the  case  of  Brady  v.  Cubitt,  1  Doug.  31,  thought  the  rule 
should  rest  on  the  presumption  that  the  testator  intended  to  revoke  his 
will,  and  that  it  therefore  followed  that  such  presumption  might  be 
rebutted  by  even  parol  evidence, — to  use  his  own  words,  that  such  pre- 
sumption might  be  rebutted  by  "every  sort  of  evidence."  But  Lord 
Mansfield's  view  seems  to  us  irreconcilable  with  the  statute  of  frauds. 
It  would  in  effect  allow  the  will  to  be  revoked  by  the  subsequent  in- 
tention of  the  testator,  without  such  intention  being  evidenced  by  the 
positive  acts  so  expressly  required  by  that  statute. 

That  view  leads  to  another  difficulty:  that  the  testator  may  change 
his  first  intention,  and  adopt  a  contrary  one ;  and,  if  so,  which  of  the 
two  intentions  is  to  prevail?  The  conclusion,  however,  that  Lord 
Mansfield  reached,  that  every  sort  of  evidence  was  admissible,  was  but 
the  logical  consequence  of  the  ground  upon  which  he  rested  the  rule ; 
namely,  that  of  presumed  alteration  of  intention.  This  case  was  de- 
cided in  1778.  But  the  courts  there  seem  to  have  felt  the  difficulties 
that  would  result  from  such  a  view,  and  Lord  Kenyon,  in  Doe  v.  Lan- 
cashire (decided  in  1792)  5  Durn.  &  E.  49,  placed  the  rule  upon  an- 
other ground;  namely,  a  tacit  condition  annexed  to  the  will,  when 
made,  that  it  should  not  take  effect  if  there  should  be  a  total  change  in 
the  situation  of  the  testator's  family.  This  view  of  Lord  Kenyon  was 
afterwards  adopted  by  Lord  Ellenborough  in  the  case  of  Kenebel  v. 
Scrafton  (decided  in  1802)  2  East,  530.  Finally,  the  court,  in  Mars- 
ton  V.  Fox,  heretofore  cited,  unanimously  adopted  the  views  of  Lord 
Kenyon,  and  it  may  now  be  considered  as  settled  in  England  that  the 
doctrine  of  implied  revocation  rests  upon  the  ground  of  a  tacit  condi- 
tion annexed  to  the  will,  when  made,  that  it  should  not  take  effect  if 
there  should  be  a  total  change  in  the  situation  of  the  testator's  family. 
In  this  we  concur. 

If  we  adopt  the  English  rule,  that  the  will  is  not  revoked  if  the  tes- 
tator makes  provision  for  the  children  of  the  subsequent  marriage,  the 
question  arises  in  the  case  at  bar  whether  he  can  be  considered  to  have 


286  LAST   WILLS   AND   TESTAMENTS.  (Part   1 

made  such  provision  by  the  purchase  of  the  property  acquired  by  hirr 
between  the  date  of  his  will  and  his  death.  This  question  must  be 
answered,  both  upon  reason  and  authority,  in  the  negative.  The  testa- 
tor disposed  of  all  the  property  he  then  owned,  by  his  will ;  but  he 
lived  20  years  after  its  date,  and  in  the  meantime  purchased  other 
real  estate,  which  the  children  of  the  second  wife  would  share  with 
those  of  the  first.  But  the  mere  accumulation  of  additional  property 
cannot,  upon  any  ground  of  reason,  be  considered  a  provision  made  by 
the  testator  for  the  second  set  of  children,  any  more  than  for  the  first 
set,  as  the  latter  are  equally  benefited  by  it.  The  injustice  of  consider- 
ing after-acquired  property  a  provision  for  the  second  children  will 
be  the  more  readily  seen  if  we  consider  a  case — and  such  have  fre- 
quently occurred — where  the  beneficiaries  under  the  will  were  com- 
parative strangers,  or  remote  collaterals.  Again,  if  after-acquired 
property  should  be  held  a  provision  for  the  after-born  children,  how 
much  property  must  be  so  acquired  ?  It  could  hardly  be  said  that  the 
purchase  of  an  acre  of  poor  land,  or  a  cow  or  horse,  could  be  so  con- 
sidered ;  and,  if  not,  by  what  rule  should  the  value  of  such  property 
be  estimated? 

But  we  are  not  without  authority  on  this  subject.  In  Marston  v. 
Fox,  above  cited,  the  point  was  made  that  an  after-purchased  estate 
did  not  pass  by  the  will,  but  descended  to  the  son  in  fee,  and  thereby 
became  a  provision  for  him,  and  prevented  the  revocation;  but,  in 
answer  to  this  objection,  the  court  said :  "In  the  first  place,  we  answer 
that  no  case  can  be  found  in  which  after-acquired  property  descend- 
ing upon  a  child  has  been  allowed  to  have  that  effect ;  and,  indeed,  such 
a  proposition  seems  incompatible  with  the  nature  of  a  condition  an- 
nexed to  the  will." 

To  determine  that  after-acquired  property  was  a  provision  for  the 
after-born  child  would  be  totally  inconsistent  with  the  theory  that  the 
rule  of  implied  revocation  rests  upon  the  tacit  condition  annexed  to  the 
will,  when  made,  that  it  should  not  take  effect  if  there  should  be  a 
total  change  in  the  situation  of  the  testator's  family.  Instead  of  the 
change  in  the  family,  it  would  make  a  change  in  the  property — one  of 
the  essential  elements  to  determine  the  implied  revocation.  The  will 
of  the  successful  testator  would  stand;  that  of  the  unfortunate  would 
be  revoked. 

Upon  the  whole  case  presented  by  the  record  before  us,  we  are  of 
opinion  that  the  testator  having  disposed  of  the  whole  of  the  estate 
owned  by  him  at  the  date  of  his  will,  and  having  again  married,  and 
had  children  by  his  second  wife,  and  having  made  no  provision  for 
such  children,  that  his  will  was  revoked  by  operation  of  law,  and  that 
the  order  of  the  orphans'  court  must  be  affirmed;  the  costs  to  be  paid 
out  of  the  estate.''^ 

8  3  In  Marston  v.  Roe  d.  Fox,  8  A.  &  E.  14  (1838),  It  was  held  that  a  pro- 
vision for  the  intended  wife  only  would  not  prevent  revocation,  but  that 
Buc'h   provision   must  also  extend  to   the  children  of  the  marriage  to  have 


Ch.   7)  THE   REVOCATION   OF   WILLS. 

In  re  GOODS  OF  CADYWOLD. 
(Court  of  Probate,  1858.    1  Sw.  &  Tr.  34.) 

T.  C.  died  in  1857,  leaving  a  duly  executed  will,  dated  the  29th 
March,  1828,  whereof  he  appointed  Elizabeth  Soundy,  spinster  (after- 
wards Elizabeth  Cadywold),  his  intended  wife,  and  two  others,  ex- 
cutors. 

By  his  will  he  devised  all  his  real  estate  to  E.  Soundy,  his  intended 
wife,  for  life,  and  after  her  death  he  directed  his  executors  to  sell  the 
same,  and  bequeathed  the  money  to  arise  from  such  sale  to  and 
amongst  all  and  every  his  child  or  children  by  his  said  intended  wife 
living  at  his  decease  or  born  in  due  time  afterwards,  and  the  residue 
of  his  personal  estate  he  bequeathed  to  Elizabeth  Soundy,  his  intended 
wife,  for  her  own  use  absolutely. 

Subsequently  to  the  execution  of  this  will  the  deceased  intermarried 
with  Elizabeth  Soundy,  and  died  leaving  his  said  wife  and  four  chil- 
dren of  the  marriage  him  surviving.  Mrs.  Cadywold  having  been  at 
first  advised  that  the  will  was  valid  on  the  authority  of  Kenebel  v. 
Scrafton,  2  East,  541,  applied  to  the  registry  as  executrix  (the  two 
other  executors  having  renounced)  for  probate,  and  was  there  directed 
to  make  application  to  the  court. 

Dr.  Addams,  Q.  C,  said  he  was  instructed  to  move  for  probate  of 
this  paper,  but,  the  law  being  as  held  in  Marston  v.  Roe  d.  Fox  [8  A. 
&  E.  14]  and  Israeli  v.  Rodon  [2  Moore,  P.  C.  51],  he  apprehended  it 
could  not  be  granted. 

Sir  C.  Cresswell.  It  seems  at  first  sight  rather  startling  to  say 
that  a  will  like  the  present,  executed  in  contemplation  of  marriage, 
and  providing  for  the  wife  and  children  of  the  marriage,  should  be 
revoked  by  such  marriage  and  the  birth  of  a  child;  but  on  the  cases 
you  have  cited,  there  is  no  doubt  that  the  law  so  stands,  and  I  must 
reject  the  motion  for  probate.'* 


INGERSOLL  v.  HOPKINS. 

(Supreme  Judicial  Court  of  Massaciiusetts,  1898.    170  Mass.  401,  49  N.  E. 

623,  40  L.  R.  A.  191.) 

Field,  C.  J.  The  will  of  Charles  D.  Ingersoll,  of  Boston,  was 
executed  on  October  20,  1891,  and  in  it  he  gave  all  his  property  to 

tliat  effect,  and  the  descent  upon  tlie  children  of  after-acquired  property  was 
not  an  equivalent.  See,  also,  Israeli  v.  Rodon,  2  Moore,  P.  C.  51  (1839),  ex- 
tending the  doctrine  of  Marston  v.  Roe  d.  Fox  from  wills  of  realty  to  testa- 
ments of  personalty. 

3  4  See  Francis  v.  Marsh,  54  W.  Va.  545,  46  S.  E.  573  (1904).  Compare  Fry 
V.  Fry,  125  Iowa,  424,  101  N.  W.  144  (1904),  where  under  *lie  statute  the 
birth  of  a  legitimate  child  revokes  a  prior  will,  irrespective  of  whether  pro- 
visioii  is  made  for  the  child  therein. 


288  LAST   WILLS   AND  TESTAMENTS.  (Part  1 

Mary  Alice  Payson,  of  said  Boston,  "single  woman,"  and  appointed 
her  one  of  the  executors,  and  requested  that  the  executors  "be  required 
to  give  no  sureties  on  their  official  bonds." 

It  appears  from  the  testimony  admitted  by  the  justice  who  reported 
the  case  to  this  court,  that  the  testator  and  Miss  Payson  were  married 
on  October  19,  1892;  that  the  testator  died  on  September  28,  1896; 
that  prior  to  the  time  when  the  will  was  executed  the  testator  and  Miss 
Payson  had  mutually  promised  to  marry  each  other;  that  the  con- 
tract of  marriage  remained  in  force  from  the  time  of  the  engagement 
until  the  marriage;  and  that  she  lived  with  him  as  his  wife  from  the 
time  of  the  marriage  until  his  death. 

From  this  evidence  in  connection  with  the  will  the  presiding  justice 
found,  as  matter  of  fact,  so  far  as  he  properly  could,  that  it  appears 
from  the  will  itself  "by  fair  inference  from  its  provisions  as  applied 
to  the  parties  and  the  subjects  to  which  it  relates,  that  the  will  was 
made  in  contemplation  of  the  marriage  that  was  subsequently  sol- 
emnized," and  he  affirmed  the  decree  of  the  probate  court  allowing  the 
will. 

The  question  of  law  in  this  case  depends  upon  the  construction  to 
be  given  to  St.  1892,  c.  118,  of  which  the  first  section  is  as  follows: 
"The  marriage  of  any  person  shall  act  as  a  revocation  of  any  will 
made  by  such  person  previous  to  such  marriage,  unless  it  shall  appear 
from  the  will  itself  that  the  will  was  made  in  contemplation  of  such 
marriage,  or  unless  and  except  so  far  as  the  will  is  made  in  exercise 
of  a  power  of  appointment  and  the  estate  thereby  appointed  would  not, 
in  default  of  appointment,  pass  to  the  persons  that  would  have  been 
entitled  to  the  same  if  it  had  been  the  testator's  own  estate,  and  he  or 
she  had  died  without  disposing  of  it  by  will." 

It  is  manifest,  we  think,  that  from  the  will  itself,  considered  inde- 
pendently of  the  testimony  admitted  by  the  presiding  justice,  it  does 
not  appear  that  the  will  was  made  in  contemplation  of  marriage  with 
Miss  Payson.  It  is  impossible  to  hold,  in  every  case  where  a  testator 
by  his  will  gives  property  or  all  his  property  to  a  woman  who  is  un- 
married and  makes  her  his  executrix,  that  it  appears  from  this  that 
at  the  time  when  he  made  the  will  he  contemplated  marrying  her  and 
made  his  will  in  contemplation  of  such  marriage.  It  does  not  appear 
that  there  was  any  dispute  or  uncertainty  as  to  the  Mary  Alice  Pay- 
son  intended,  or  that  any  evidence  was  necessary  to  identify  her  or 
the  estate  which  was  devised  and  bequeathed  to  her. 

The  evidence  was  admitted  to  show  another  fact  existing  at  the  time 
when  the  will  was  made,  namely,  that  at  that  time  the  testator  was  un- 
der a  contract  of  marriage  with  her,  and  then,  by  considering  this  fact 
m  coimection  with  the  provisions  of  the  will,  the  presiding  justice 
drew  the  inference  that  the  will  was  made  in  contemplation  of  the 
marriage  with  her  which  afterwards  took  place.  It  was  in  effect  con- 
ceded by  both  sides  that,  although  the  will  was  made  before  St  1892, 
^.  118,  took  effect,  yet,  as  the  marriage  took  place  after  the  statute 


Ch.  7)  THB   REVOCATION   OF   WILLS.  289 

took  effect,  the  statute  was  applicable  to  the  case.    See  Swan  v.  Sayles, 
165  Mass.  177,  42  N.  E.  570. 

The  counsel  for  the  appellees  cite  the  decisions  of  this  court  upon 
the  construction  of  what  is  now  Pub.  St.  c.  127,  §  21,  which  section 
is  as  follows :  "When  a  testator  omits  to  provide  in  his  will  for  any 
of  his  children  or  for  the  issue  of  a  deceased  child,  they  shall  take 
the  same  share  of  his  estate  that  they  would  have  been  entitled  to  if 
he  had  died  intestate,  unless  they  have  been  provided  for  by  the  testa- 
tor in  his  lifetime,  or  unless  it  appears  that  the  omission  was  inten- 
tional and  not  occasioned  by  accident  or  mistake."  Under  the  statu- 
tory provision  which  now  constitutes  this  section  the  court  held  that 
parol  evidence  is  admissible  to  show  that  the  omission  by  a  testator 
to  provide  in  his  will  for  any  of  his  children  or  for  the  issue  of  a  de- 
ceased child  was  intentional,  and  was  not  occasioned  by  accident  or 
mistake.    Converse  v.  Wales,  4  Allen,  512. 

But  the  section  does  not  require  that  it  should  appear  from  the  will 
itself  that  the  omission  was  intentional,  and  it  well  may  be  that  the 
reason  for  using  the  different  phraseology  in  St.  1892,  c.  118,  was  that 
the  Legislature  did  not  intend  to  leave  the  question  whether  a  will  was 
made  in  contemplation  of  a  marriage  which  subsequently  took  place 
to  the  uncertainty  which  often  attends  the  proof  of  facts  by  oral  evi- 
dence. 

The  counsel  for  the  appellees  also  rely  upon  the  construction  which 
has  been  given  to  what  is  now  Pub.  St.  c.  127,  §§  24,  25.  Fay  v.  Fay, 
1  Cush.  93.  Brimmer  v.  Sohier,  1  Cush.  118.  These  sections  are  as 
follows : 

"Sec.  24.  Every  devise  shall  be  construed  to  convey  all  the  estate 
which  the  testator  could  lawfully  devise  in  the  lands  mentioned,  un- 
less it  clearly  appears  by  the  will  that  he  intended  to  convey  a  less 
estate. 

"Sec.  25.  An  estate,  right,  or  interest  in  lands  acquired  by  a  testa- 
tor, after  the  making  of  his  will,  shall  pass  thereby  in  like  manner  as 
if  possessed  by  him  at  the'  time  when  he  made  his  will,  if  such  mani- 
festly and  clearly  appears  by  the  will  to  have  been  the  testator's  in- 
tention." 

The  decisions  are  to  the  effect  that  the  intention  of  the  testator 
under  these  sections  need  not  be  declared  in  express  terms  in  .the  will, 
but  that  it  is  sufficient  if  the  intention  can  be  clearly  inferred  from 
particular  provisions  of  the  will,  or  from  its  general  scope  and  import. 
The  decisions  give  no  sanction  to  the  doctrine  that  such  intention  can 
be  shown  by  evidence  other  than  that  derived  from  the  will  itself. 

The  statute  in  England  on  the  subject  is  as  follows:  "And  be  it 
further  enacted,  that  every  will  made  by  a  man  or  woman  shall  be 
revoked  by  his  or  her  marriage  (except  a  will  made  in  exercise  of  a 
power  of  appointment,  when  the  real  or  personal  estate  thereby  ap- 
pointed would  not  in  default  of  such  appointment  pass  to  his  or  her 
Cost.  Wills— 19 


290  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

heir,  customary  heir,  executor  or  administrator,  or  the  person  entitled 
as  his  or  her  next  of  kin,  under  the  statute  of  distributions)."  1  Vict. 
c.  26,  §  18. 

There  it  is  held  that  no  intention  of  the  testator,  even  though  ex- 
pressed in  the  will  itself,  can  prevent  the  revocation  of  the  will  by  a 
subsequent  marriage.  Otway  v.  Sadleir,  33  L.  T.  46;  In  re  Cady- 
wold,  1  Sw.  &  Tr.  34;  Jarm.  Wills  (6th  Ed.)  110  et  seq.  Our  stat- 
ute follows  closely  the  English  statute,  inserting  only  the  exception, 
"unless  it  shall  appear  from  the  will  itself  that  the  will  was  made  in 
contemplation  of  such  marriage."  The  intention  of  our  Legislature 
apparently  was  not  to  follow  the  English  statute  as  interpreted  by  the 
English  courts,  when  it  appeared  from  the  Vv^ill  itself  that  it  was  made 
in  contemplation  of  a  marriage  which  subsequently  took  place,  but 
to  follow  it  in  other  respects,  and  to  exclude  from  consideration  any 
evidence  not  derived  from  the  will  itself. 

The  statute  of  Georgia  more  nearly  resembles  ours,  and  it  is  there 
held  that  parol  evidence  cannot  be  received  to  show  that  the  will  was 
made  "in  contemplation  of  the  event"  of  marriage  or  the  birth  of  a 
child.    Ellis  V.  Darden,  86  Ga.  368,  12  S.  E.  652,  11  E.  R.  A.  51. 

In  the  opinion  of  a  majority  of  the  court,  St.  1892,  c.  118,  means 
that  when  the  will  is  not  made  in  the  exercise  of  a  power  of  appoint- 
ment, it  must  be  apparent  on  the  face  of  the  will  itself  that  the  will 
was  made  in  contemplation  of  "such  marriage,"  either  by  an  express 
declaration  in  the  will  to  that  effect,  or  by  language  in  the  will  from 
which  such  contemplation  may  fairly  be  inferred,  otherwise  a  subse- 
quent marriage  "shall  act  as  a  revocation." 

A  decree  should  be  entered  that  the  decree  of  the  probate  court 
allowing  the  will  be  reversed,  and  that  the  will  be  disallowed,  and  the 
case  remanded  to  the  probate  court  for  further  proceedings.  Decree 
accordingly.^' 


PHILLIPPE  et  al.  v.  CLEVENGER  et  al. 

(Supreme  Court  of  Illinois,  1909.      239  111.  117,  87  N.  E.  858.) 

Hand,  J.  This  is  an  appeal  from  a  decree  of  the  circuit  court  of 
Champaign  county,  entered  in  a  suit  for  the  partition  of  certain  lands 
of  which  John  Phillippe,  Jr.,  died  seised,  commenced  by  the  appellants 
against  the  appellees,  in  so  far  as  it  disposes  of  the  title  to  the  west 
half  of  the  southwest  quarter  of  section  5,  township  20  north,  range 
8  east  of  the  third  principal  meridian.  Champaign  county,  111. 

8  8  But  under  the  Washington  statute,  where  the  will  is  not  revoked  If 
the  wife  be  provided  for  in  the  will,  a  will  is  held  not  to  be  revoked  where 
a  testator  marries  the  woman  for  whom  he  has  therein  provided  as  his 
"friend,"  even  though  it  does  not  appear  on  the  face  of  the  will  that  it  was 
made  in  contemplation  of  marriage.  In  re  Adler's  Estate,  52  Wash.  539,  100 
Pac.  1019  (1909). 


Ch.  7)  THE   REVOCATION   OF   WILLS.  291 

It  appears  from  the  record  that  in  and  by  the  fourth  paragraph 
of  his  will,  which  bore  date  September  15,  1877,  John  Phillippe,  Jr.^ 
devised  to  Nettie  F.  Clevenger,  his  daughter,  in  fee  simple,  the  prem- 
ises heretofore  described ;  that  on  April  24,  1879,  the  said  John  Phil- 
lippe, Jr.,  by  warranty  deed,  for  and  in  consideration  of  love  and  af- 
fection, conveyed  said  premises  to  his  said  daughter,  Nettie  F.  Cleven- 
ger, and  she  took  possession  of  said  premises;  that  on  January  10, 
1883,  the  said  Nettie  F.  Clevenger,  by  warranty  deed,  for  and  in  con- 
sideration of  $3,000  to  her  in  hand  paid,  reconveyed  to  said  John  Phil- 
lipe,  Jr.,  the  said  premises,  and  surrendered  possession  thereof  to  him, 
and  that  John  Phillippe,  Jr.,  was  in  possession  of  and  seised  in  fee 
simple  of  said  premises  at  the  time  of  his  death,  which  occurred  on 
November  10,  1884 ;  that  the  fifth  paragraph  of  the  will  of  said  John 
Phillippe,  Jr.,  gave  the  use  of  all  the  estate  of  which  he  died  seised 
which  had  not  been  specifically  devised  to  his  wife,  Susan  J.  Phillippe, 
during  her  natural  life,  and  that  she  took  possession  of  his  estate,  in- 
cluding the  premises  devised  to  Nettie  F.  Clevenger,  and  had  pos- 
session thereof  until  her  death,  which  took  place  on  March  7,  1907; 
that  by  the  sixth  paragraph  of  his  will  John  Phillippe,  Jr.,  provided 
that  the  residue  of  his  estate,  both  real  and  personal,  upon  the  death 
of  Susan  J.  Phillippe,  should  be  equally  divided  between  his  children, 
Mary  F.  Scroggins,  Mathew  A.  Phillippe,  John  F.  Phillippe,  and  Net- 
tie F.  Clevenger,  and  the  children  of  a  deceased  daughter,  Melissa  J. 
Buckles,  the  said  grandchildren  to  take  their  mother's  share. 

The  trial  court  held  that  Nettie  F.  Clevenger  took  the  fee  title,  ab- 
solutely, to  the  premises  devised  to  her  by  paragraph  4  of  the  will, 
and  the  only  question  here  presented  for  determination  is  the  correct- 
ness of  the  decision  of  the  trial  court  in  that  regard ;  it  being  the  con- 
tention of  the  appellants  that  by  the  conveyance  of  said  premises  by 
John  Phillippe,  Jr.,  to  Nettie  F.  Clevenger,  during  his  lifetime,  para- 
graph 4  of  his  will  was  revoked,  and  that  said  provision  of  the  will 
was  not  revived  by  the  reconveyance  of  said  premises  to  John  Phil- 
lippe, Jr.,  and  that  the  premises  described  in  said  paragraph  4  of  the 
will  passed  to  his  children  and  grandchildren  under  the  sixth  para- 
graph of  the  will  as  a  part  of  the  residuum  of  his  estate,  or  to  them 
as  intestate  property. 

It  seems  to  be  well  settled  by  the  common  law  of  England  that  a 
conveyance  by  a  testator  of  lands  which  he  has  specifically  devised  by 
his  will  revokes  the  will  as  to  said  lands  (30  Am.  &  Eng.  Ency.  of 
Law  [2d  Ed.]  p.  652;  1  Underbill  on  Wills,  §415;  1  Jarman  on 
Wills,  c.  7,  §  3;  4  Kent's  Com,  p.  528),  and  that  a  specific  devise  of 
lands  is  not  revived  by  reason  of  the  fact  that  the  testator  subse- 
quently acquires  title  to  the  lands  conveyed  (30  Am,  &  Eng.  Ency. 
of  Law  [2d  Ed.]  p.  654;  4  Kent's  Com,  p,  529;  1  Jarman  on  Wills, 
p.  147).  The  question  here  involved  is  therefore  narrowed  to  the 
question  whether  those  rules  of  the  common  law  are  in  force  in  this 
state. 


292  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

The  common  law  of  England,  so  far  as  the  same  is  applicable  and 
of  a  general  nature,  is  in  force  in  this  state  with  reference  to  the  rev- 
ocation and  revival  of  wills,  except  in  so  far  as  it  has  been  repealed 
Dy  statute.  Kurd's  Rev.  St.  1908,  c.  28,  §  1;  Stetson  v.  Stetson,  200 
111.  601,  66  N.  E.  262,  61  L.  R.  A.  258. 

It  is,  however,  contended  by  Nettie  F.  Clevenger  that  the  common 
law  in  regard  to  the  revocation  of  wills  by  implication  is  repealed  in 
this  state  by  paragraph  17  of  the  wills  act  (3  Starr  &  C.  Ann.  St. 
1896,  p.  4044,  c.  148),  which  reads  as  follows:  "No  will,  testament  or 
codicil  shall  be  revoked,  otherwise  than  by  burning,  canceling,  tearing 
or  obliterating  the  same,  by  the  testator  himself,  or  in  his  presence,  by 
his  direction  and  consent,  or  by  some. other  will,  testament  or  codicil 
in  writing,  declaring  the  same,  signed  by  the  testator  or  testatrix,  in 
the  presence  of  two  or  more  witnesses,  and  by  them  attested  in  his  or 
her  presence;  and  no  words  spoken  shall  revoke  or  annul  any  will, 
testament  or  codicil  in  writing,  executed  as  aforesaid,  in  due  form  of 
law." 

The  paragraph  of  the  statute  referred  to  has  been  in  force  in  this 
state  since  the  enactment  of  the  Revised  Statutes  of  1845,  and  in  a 
number  of  cases  decided  by  this  court  since  that  time  wills  have  been 
held  to  have  been  revoked,  in  whole  or  in  part,  by  the  acts  of  the  maker 
of  the  will  which  do  not  fall  within  the  provisions  of  said  paragraph 
17 ;  that  is,  they  have  been  held  to  have  been  revoked  by  implication. 
Tyler  v.  Tyler,  19  111.  151 ;  In  re  TuUer,  79  111.  99,  22  Am.  Rep.  164 ; 
Updike  v.  Tompkins,  100  111.  406;  Duryea  v.  Duryea,  85  111.  41; 
American  Board  of  Commissioners  for  Foreign  Missions  v.  Nelson, 
72  111.  564. 

The  ground  upon  which  the  courts  hold  a  will  to  be  revoked  by  im- 
plication is  that  the  acts  of  the  testator  subsequent  to  its  execution 
show  an  intention  inconsistent  with  the  will;  in  other  words,  his  acts 
show  an  intention  that  his  will  is  not  to  be  carried  out  as  originally 
drawn.  In  the  Tyler  Case,  where  the  marriage  of  the  testator  took 
place  subsequent  to  the  execution  of  his  will,  and  where  there  was 
no  child  or  the  descendant  of  a  child,  it  was  held  in  the  absence  of 
facts  arising  subsequent  to  the  marriage  which  showed  an  intention  to 
die  testate,  that  the  will  was  presumed  to  be  revoked  by  the  marriage. 
To  the  same  effect  is  Duryea  v.  Duryea,  supra. 

We  think  it  clear,  therefore,  that  paragraph  17  of  the  wills  act  only 
applies  to  the  revocation  of  a  will  where  there  is  an  express  intention 
on  the  part  of  the  testator  to  revoke  a  will,  and  that  said  section  does 
not  apply  to  the  revocation  of  a  will,  or  a  part  thereof,  arising  by  im- 
plication of  law  from  the  acts  of  the  testator  which  show  such  a 
change  in  the  condition  of  his  estate  as  to  raise  a  presumption  that 
he  intended  to  revoke  a  part  or  the  whole  of  his  will.  Section  6  of 
the  English  statute  of  frauds  (8  Pickering's  Stat,  at  Large,  p.  406), 
which  is,  in  substance,  the  same  as  section  17  of  the  wills  act  in  force 
in  this  state,  was  in  force  in  England  at  the  time  the  rule  was  estab- 


Ch.  7)  THE   REVOCATION   OF  WILLS.  293 

lished  in  that  country  that  a  will,  or  a  part  thereof,  could  be  revoked 
by  implication.  We  are  therefore  forced  to  the  conclusion  that  the 
doctrine  of  the  revocation  of  a  will,  or  a  part  thereof,  by  iinplication, 
is  not  abrogated  by  statute  in  this  state. 

We  therefore  hold  that  by  the  conveyance  of  the  premises  in  ques- 
tion to  Nettie  F.  Clevenger  by  the  testator  the  fourth  paragraph  of 
the  will  of  John  Phillippe,  Jr.,  was  revoked,  and  that  as  he  never  re- 
published his  will  after  the  premises  were  reconveyed  to  him,  in  ac- 
cordance with  the  statute  pointing  out  the  manner  in  which  wills  are 
to  be  executed,  that  paragraph  of  the  will  was  not  revived  by  a  recon- 
veyance of  the  premises  to  him  by  his  daughter.  To  hold  otherwise 
would  be  to  hold  it  was  the  intention  of  the  testator  that  his  daughter, 
Nettie  F.  Clevenger,  was  to  have  the  80-acre  tract  of  land  mentioned 
in  paragraph  4  of  the  will,  and  $3,000  in  cash  in  addition  thereto,  while 
the  will  shows  upon  its  face  that  it  was  manifestly  the  intention  of 
the  testator  that  his  said  daughter  should  only  be  preferred  over  her 
brothers  and  sisters,  in  the  division  of  her  father's  estate,  to  the  ex- 
tent of  the  80  acres  of  land. 

The  question  whether  the  premises  covered  by  the  fourth  paragraph 
of  the  will,  if  that  provision  of  the  will  is  held  to  have  been  revoked, 
passed  to  the  persons  named  in  paragraph  6  of  the  will  as  the  devisees 
of  John  Phillippe,  Jr.,  as  a  part  of  the  residuum  of  his  estate,  or  to  the 
same  persons  as  heirs  at  law  of  said  John  Phillippe,  Jr.,  is  immaterial 
and  need  not  be  decided,  as  said  devisees  and  the  heirs  at  law  of  John 
Phillippe,  Jr.,  are  the  same  persons,  and  the  interests  which  they  would 
take  in  said  80  acres  of  land,  either  as  devisees  under  the  will  or  under 
the  law  as  heirs,  is  the  same. 

The  decree  of  the  circuit  court  will  be  reversed,  and  the  cause  re- 
manded to  that  court,  with  directions  to  overrule  the  demurrer  of  Net- 
tie F.  Clevenger  to  the  bill  filed  in  this  case  for  the  partition  of  said 
80-acre  tract  of  land.     Reversed  and  remanded,  with  directions." 

86  See  Hattersley  v.  Bissett,  51  N.  J.  Eq.  597,  29  Atl.  187,  40  Am.  St. 
Rep  532  (1S93) ;  Walton  v.  Walton,  7  Johns.  Ch.  (N.  Y.)  258,  11  Am.  Dec.  456 
(1823).  But  see  Woolery  v.  Woolery,  48  Ind.  523  (1874) ;  INIorey  v.  Sohier,  63 
N.  H.  507,  3  Atl.  636,  56  Am.  Rep.  538  (1885).  In  Bethany  Hospital  Co.  v. 
Philippi  (Kan.)  107  Pac.  530  (1910),  a  deed  of  a  person  known  by  the  grantee  to 
be  insane  was  held  not  to  effect  a  revocation.  So  it  has  been  held  that  a  con- 
\  veyance  set  aside  as  having  been  obtained  from  the  grantor  by  undue  influence 
cannot  operate  as  an  implied  revocation  of  his  will.  Graham  v.  Bnrch,  47 
Minn.  171,  49  N.  W.  697,  28  Am.  St.  Rep.  339  (1891).  See,  also,  28  Am.  St. 
Rep.  356-358,  note. 

The  mistake  of  the  decision  in  Phillippe  v.  Clevenger,  supra,  lies  in  treat- 
ing the  case  as  one  of  revocation  rather  than  as  one  of  attempted  but  un- 
completed ademption.  The  cases  on  ademption  are  treated  elsewhere  here- 
in.    See  p.  728  ff., 

"Nearly  all  the  jurisdictions  in  which  common  law  Is  in  force  have  framed 
statutes  to  the  effect  that  no  alteration  in  the  estate  of  testator  in  property 
devised  or  bequeathed  shall  effect  a  revocation  of  his  will  as  to  such,  unless 
he  is  vv'holly  divested  of  his  interest  therein,  or  unless  in  the  instrument  by 
which  such  alteration  is  made,  he  declares  his  intention  that  it  shall  operate 
as  a  revocation  of  such  previous  devise."     Page  on  Wills.  §  279. 


294  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

WARNER  V.  BEACH. 
(Supreme  Judicial  Court  of  Massactiusetts,  1S55.     4  Gray,   1G2.) 

Shaw,  C.  J.'^  *  *  *  2.  The  only  other  circumstances,  intimated  as 
ground  of  revocation  of  this  will,  are  the  increase  in  value  of  the 
real  estate,  and  the  long  continued  insanity  of  the  testator,  which  dis- 
abled him  from  altering  his  will.  The  former  circumstances  alone 
would  have  no  weight;  and  it  is  only  the  great  length  of  time,^^  dur- 
ing which  this  disability  lasted,  which  appears  to  give  it  any  plausibil- 
ity. It  is  said  that  a  will  is  ambulatory  during  the  life  of  the  testator, 
because  he  may  at  any  time  alter  or  change  it.  If  this  could  be  held 
to  mean  that  he  must  always  have  the  capacity  to  revoke,  it  would  fol- 
low that  any  attack  of  insanity  would  operate  as  a  revocation,  which 
would  prove  far  too  much.  And  we  have  no  law,  no  rule  or  maxim, 
intimating  a  distinction  in  this  respect  between  the  existence  of  in- 
sanity for  a  longer  or  shorter  period  of  duration. 

No  case  was  cited  by  the  counsel,  and  we  are  aware  of  none,  where 
any  insanity  after  making  a  will  is  held  to  revoke  the  will.  In  Forse 
V.  Hembling's  Case,  4  Co.  61b,  the  court,  in  commenting  upon  the 
ambulatory  character  of  a  will,  to  the  end  of  life,  suspended  in  case 
of  a  woman  who  makes  a  will  and  marries,  and  thus  by  her  own  act  is 
disqualified  by  the  disability  of  coverture,  say:  "It  would  be  against 
the  nature  of  a  will  to  be  so  absolute,  that  he  who  makes  it,  being  of 
good  and  perfect  memory,  cannot  countermand  it.  But  when  a  man 
of  sound  memory  makes  his  will,  and  afterwards,  by  the  visitation  of 
God,  becomes  of  unsound  memory  (as  every  man,  for  the  most  part, 
before  his  death  is),  God  forbid  that  this  act  of  God  should  be  in  law 
a  revocation  of  his  will,  which  he  made  when  he  was  of  good  and  per- 
fect memory."  This  was  not  an  adjudicated  point  in  the  case;  but 
it  was  put  by  way  of  illustration,  as  an  unquestionable  rule  of  law, 
and,  as  such,  is  an  authority  entitled  to  respect. 

The  court  are  of  opinion,  that  the  decision  of  the  probate  court, 
adjudging  the  will  of  Clark  Cooley,  under  the  circumstances,  not  to 
have  been  revoked,  was  correct,  and  that  the  decree  allowing  and  ad- 
mitting it  to  probate  must  be  affirmed.    Decree  affirmed. 

«T  Part  only  of  the  opinion  is  given.  «8  Over  thirty  years. 


Ch.  7)  THE   REVOCATION   OF   WILLS.  295 


HOITT  V.  HOITT. 

(Supreme  Court  of  New  Hampshire,  ISSG.     63  N.  H.  475,  3  Atl.  604,  56  Am. 

Rep.  530.) 

Blodgett,  J.^^  No  express  revocation  appears  in  this  case,  ♦  *  * 
Fellows  V.  Allen,  GO  N.  H.  439,  441,  49  Am.  Rep.  328,  is  a  recent 
and  direct  authority  that  the  fact  of  a  will  being  found  among  worth- 
less papers  works  no  revocation  of  it.    *    *    * 

Neither  has  the  will  become  inoperative,  as  a  whole,  from  necessity, 
either  by  an  entire  loss  of  the  testator's  estate,  or  its  total  alienation, 
or  by  the  decease  of  all  the  devisees  without  descendants,  and  so  leav- 
ing nothing  upon  which  it  can  operate.  If,  therefore,  there  has  been 
a  valid  revocation,  it  must  be  one  arising  from  legal  presumption  or 
implication ;   and  this  in  fact  is  the  principal  contention. 

The  existing  statute  as  to  the  revocation  of  wills,  which  was  orig- 
inally adopted  in  1822,  after  pointing  out  the  modes  by  which  a  will 
may  be  revoked,  expressly  excepts  any  revocation  implied  by  law  from 
changes  in  the  circumstances  of  the  testator,  his  family,  devisees,  or 
estate,  occurring  between  the  time  of  making  the  will  and  his  death. 
Gen.  Laws,  c.  193,  §§  14,  15.  But  what  these  changes  are,  section 
15  does  not  in  any  manner  attempt  to  define;  and  the  effect  conse- 
quently is  to  leave  the  matter  of  revocation  by  legal  implication  just 
as  it  stood  before  the  enactment  of  that  section.    *    *    * 

No  new  cause  of  revocation  being  introduced  by  the  statute,  the 
true  inquiry  is  whether  the  facts  of  this  case  bring  it  within  any  of 
the  exceptions  upon  the  subject  of  implied  revocation  recognized  by 
the  English  courts  after  the  adoption  of  the  statute  of  1676,  which 
were  quite  limited  in  number,  and  reasonably  well  defined  and  under- 
stood at  the  time  our  statute  was  enacted.  The  causes  assigned  upon 
this  point  as  ground  of  revocation  are  subsequent  changes  in  the  cir- 
cumstances of  the  deceased,  his  family  and  estate.  They  are,  sub- 
stantially, the  death  of  his  wife  and  his  son  Franklin,  both  of  whom 
were  legatees ;  his  second  marriage,  but  without  issue ;  the  alienation 
of  the  larger  portion  of  his  estate ;  and  its  nearly  threefold  increase  in 
value  through  natural  causes  and  judicious  investments. 

But  total  revocation  cannot  be  implied  from  the  death  of  the  wife 
and  the  son.  "The  death  of  a  devisee  is  a  contingency  always  in 
view."  Shaw,  C.  J.,  in  Warner  v.  Beach,  4  Gray  (Mass.)  162,  164. 
"I  know  of  no  case,"  said  Denman,  C.  J.,  in  Doe  v.  Edlin,  4  Adol.  & 
E.  586,  "where  it  has  been  held  that  the  removal  of  an  object  of  af- 
fection and  bounty,  by  death,  has  been  taken  to  be  an  implied  revoca- 
tion of  a  will,  and,  in  my  opinion,  it  does  not  operate  so."  And  see 
Fellows  V.  Allen,  supra. 

Nor  can  it  be  implied  from  the  testator's  remarriage,  because  the 
indispensable  common-law  requisite  of  the  subsequent  birth  of  a  child 

«»  The  statement  of  facts  is  omitted,  and  part  only  of  the  opinion  is  given. 


296  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

is  lacking.  1  Jarm.  Wills  (5th  Amer.  Ed.)  272;  1  Redf.  Wills,  293; 
Pars.  Wills,  *59;  Worth.  Wills,  *o2S.  "This  principle  of  law  is  in- 
controvertibly  established."  4  Kent,  Comm.  522.  And  in  this  con- 
nection it  should  also  be  borne  in  mind  that  the  rule  never  applied 
except  in  cases  where  the  wife  and  after-born  children,  the  new  ob- 
jects of  duty,  were  wholly  unprovided  for  in  the  will,  and  where  there 
was  an  entire  disposition  of  the  whole  estate  to  their  exclusion  and 
prejudice;  therefore,  inasmuch  as  the  widow  and  children  of  a  tes- 
tator not  provided  for  in  the  will  are,  under  our  statute,  entitled  to 
the  same  share  of  the  estate  as  if  he  had  died  intestate,  the  sole  reason 
upon  which  the  rule  was  grounded  no  longer  exists,  and  so  the  rule 
itself  has  become  inoperative  and  obsolete  in  this  jurisdiction. 

The  inquiry  thus  becomes  restricted  to  the  effect  of  the  changes  in 
the  testator's  property;  the  phrase  "circumstances  of  the  testator," 
etc.,  relating  to  new  family  ties,  and  not  to  changes  in  property.  4 
Kent,  Comm.  521,  and  authorities  generally.  But  if  it  were  apparent, 
as  it  certainly  is  not,  that  in  the  case  of  a  testator  an  entire  revocation 
by  legal  implication  resulted,  either  before  or  after  the  statute  of 
1676,  from  any  change  whatever  of  condition  or  circumstances  ex- 
cept that  of  a  subsequent  marriage  and  child,  it  is  the  undoubted  gen- 
eral rule  that  a  partial  revocation  only  produces  what  is  inaptly  and 
inaccurately  termed  a  revocation  pro  tanto,  instead  of  an  ademption, 
of  the  subject  of  the  devise,  and  thus  necessarily  limits  the  operation 
of  the  will  to  the  extent  of  the  alienation;  not,  however,  by  reason 
of  any  defect  in  the  will  itself,  but  because  it  pleased  the  testator  to 
make  a  disposition  of  such  part  of  his  estate  different  from  what  he 
originally  intended,  which  it  is  always  competent  for  him  to  do  either 
by  a  conveyance,  or  a  new  will  or  codicil.  See  Fellows  v.  Allen,  su- 
pra; Carter  v.  Thomas,  4  Greenl.  (Me.)  341,  343,  344;  Graves  v. 
Sheldon,  2  D.  Chip.  (Vt.)  71,  75,  15  Am.  Dec.  653;  Blandin  v.  Blan- 
din,  9  Vt.  210,  211;  Hawes  v.  Humphrey,  9  Pick.  (Mass.)  350.  20 
Am.  Dec.  481;  Terry  v.  Edminster,  9  Pick.  (Mass.)  355,  note;  Web- 
ster v.  Webster,  105  J^Iass.  538,  542;  Balliet's  Appeal,  14  Pa.  451; 
Brush  V.  Brush,  11  Ohio.  287;  Floyd  v.  Floyd,  7  B.  Mon.  (Ky.)  290; 
In  re  Nan  Mickel.  14  Johns.  (N.  Y.)  324;  McXaughton  v.  McNaugh- 
ton,  .34  N.  Y.  201;  Warren  v.  Taylor,  56  Iowa,  182,  9  N.  W.  128; 
Wells  V.  Wells,  35  Miss.  638 ;  Brydges  v.  Duchess  of  Chandos,  2  Ves. 
Jr.  417;  4  Dane,  Abr.  576,  577;  Love.  Wills.  358;  1  Redf.  Wills, 
335 ;  Pars.  Wills.  63.  "Conveying  a  part  of  the  estate,  upon  which 
the  will  would  otherwise  operate,  indicates  a  change  of  purpose  in  the 
testator  as  to  that  part;  but  suffering  the  will  to  remain  uncanceled 
evinces  that  his  intention  is  unchanged  with  respect  to  other  property 
bequeathed  or  devised  therein."  Weston,  J.,  in  Carter  v.  Thomas,  4 
Greenl.  (Me.)  344. 

The  remaining  circumstance,  that  of  the  increase  of  the  estate,  upon 
obvious  considerations  of  public  policy,  has  no  weight;  and  to  this 
effect  is  the  great  preponderance  of  authority.     Warner  v.   Beach, 


Ch.  7)  THE   REVOCATION   OF   WILLS.  297 

Webster  v.  Webster,  Graves  v.  Sheldon,  Blandin  v.  Blandin,  and  Bal- 
liet's  Appeal,  supra;  Brush  v.  Wilkins,  4  Johns.  Ch.  (N.  Y.)  507, 
518,  519;  Wogan  v.  Small,  11  Serg.  &  R.  (Pa.)  141,  145;  Vande- 
mark  v.  Vandemark,  26  Barb.  (X.  Y.)  416;  Verdier  v.  Verdier,  8 
Rich.  Law  (S.  C.)  135.  "A  merely  general  change  in  the  testator's 
circumstances,  as  it  regards  the  amount  and  relative  value  of  his  prop- 
erty, will  not  in  general,  if  ever,  have  the  effect  to  revoke  a  will,  since 
the  testator,  by  suffering  it  to  remain  uncanceled,  does  in  effect  re- 
affirm it,  from  day  to  day,  until  the  termination  of  his  conscious  ex- 
istence."'   1  Redf.  Wills,  298. 

The  conclusion,  then,  is  that  the  subsequent  changes  in  the  circum- 
stances of  the  testator,  his  family  and  estate,  do  not  imply  a  revocation 
of  his  will.  To  effect  a  revocation  both  the  English  and  New  Hamp- 
shire statutes  require  certain  specified  things,  which  are  lacking  in 
this  case,  to  be  done,  and  not  merely  contemplated  or  even  actually 
intended  to  be  done.     *     *     * 

The  rule  for  which  the  appellee  contends  is  that  a  revocation  may 
be  proved  or  disproved  by  any  circumstantial  evidence  showing  the 
testator's  intention ;  but  the  precedents  do  not  support  the  contention. 
On  the  contrary,  after  a  most  thorough  examination  of  the  cases  re- 
ported before  the  enactment  of  the  Xew  Hampshire  statute,  it  was 
unanimously  held  in  Marston  v.  Roe,  8  Adol.  &  E.  14,  by  the  14 
judges  sitting  in  the  cause,  that  implied  revocation  takes  place  in  con- 
sequence of  a  rule  or  principle  of  law%  independently  altogether  of 
any  question  of  intention ;  and  there  is  no  reason  to  suppose  that  the 
Legislature  of  1822  took  a  different  view  of  the  reported  cases.  If 
their  purpose  was  to  make  intention  of  itself  a  ground  of  revocation, 
and  thus  inevitably  invite  litigation  and  '"produce  infinite  uncertainty 
and  delay  in  the  settlement  of  estates,"  tlie  presumption  is  that  the 
statute  would  have  been  drawn  accordingly. 

Even  Johnston  v.  Johnston,  1  Phillim.  447,  upon  which  great  stress 
has  been  laid  by  the  appellee,  while  holding  the  subsequent  birth  of  a 
portionless  child  to  be  an  indispensable  requisite  which  would  effect  a 
revocation  when  aided  by  other  circumstances,  and  a  subsequent  mar- 
riage not  to  be  an  essential  requisite,  does  not  hold  that  the  revoking 
intent  may  be  inferred  from  a  general  change  of  circumstances  simply, 
but  makes  the  controlling  principle  rest  upon  new  moral  obligations 
and  family  ties  arising  a'fter  the  making  of  the  will,  and  thus  limits 
its  application  to  cases  of  subsequent  marriage  or  birth  in  which  the 
wife  or  child  would  othenvise  be  left  without  provision  for  support. 
This  case,  however,  is  not  relevant,  the  will  being  one  of  personalt}- 
only,  and  the  decision  being  made  by  an  ecclesiastical  court,  unincum- 
bered by  statute  provisions;  and  if  it  were  relevant,  its  governing 
principle,  when  applied  to  this  case,  would  be  fatal  to  the  appellee, 
for  rhe  reason  that  no  child  was  born  to  the  testator  subsequently  to 
the  ^.xecution  of  his  will. 


298  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

This  being-  so,  it  is  of  no  practical  consequence  here  whether  the 
doctrine  of  implied  revocation  rests  upon  the  fact  of  a  changed  inten- 
tion, as  held  in  Johnston  v.  Johnston,  or  takes  place  in  consequence  of 
a  rule  or  principle  of  law  founded  on  a  tacit  condition  annexed  to  the 
will  itself  when  made,  independently  altogether  of  any  question  of 
intention,  as  held  in  Marston  v.  Roe;  for  the  application  of  either 
principle  to  the  facts  of  this  case  leaves  the  will  unrevoked,  because 
they  fail  to  bring  it  within  any  of  the  exceptions  introduced  by  the 
ecclesiastical  or  common-law  courts.     *     *     * 

The  proffered  oral  declarations  of  the  testator  to  the  effect  that 
he  understood  the  will  was  revoked,  were  rightly  rejected.  The  mere 
understanding  of  a  testator  cannot  revoke  his  will,  for  legal  require- 
ments cannot  be  thus  abrogated;  nor  can  his  oral  declarations,  for 
wills  cannot  be  revoked  by  parol;  nor,  upon  the  great  weight  of  au- 
thority, are  such  declarations  evidence,  unless  they  accompany  some 
act  of  revocation,  and  thereby  become  a  part  of  the  res  gestae.  Jack- 
son v.  Kniffen,  2  Johns.  (N.  Y.)  31,  3  Am.  Dec.  390;  Dan  v.  Brown, 
4  Cow.  (N.  Y.)  483,  15  Am.  Dec.  395;  Clark  v.  Smith,  34  Barb.  (N. 
Y.)  140 ;  Waterman  v.  Whitney,  11  N.  Y.  157,  62  Am.  Dec.  71 ;  Ran- 
dall v.  Beatty,  31  N.  J.  Eq.  643;  Lewis  v.  Lewis,  2  Watts  &  S.  (Pa.) 
455 ;  Hargroves  v.  Redd,  43  Ga.  142,  160 ;  Gay  v.  Gay,  60  Iowa,  415, 
14  N.  W.  238,  46  Am.  Rep.  78 ;  Rodgers  v.  Rodgers,  6  Heisk.  (Tenn.) 
489;  Smith  v.  Fenner,  1  Gall.  170,  Fed.  Cas.  No.  13,046;  Doe  v. 
Palmer,  16  Adol.  &  E.  747;  2  Greenl.  Ev.  (9th  Ed.)  §  690;  Abb. 
Tr.  Ev.  124;  2  Starkie,  Ev.  (3d  Ed.)  1286;  1  Redf.  Wills,  331. 

Such  declarations,  also,  were  not  competent,  upon  the  testator's  in- 
tention not  to  pass  by  his  will  after-required  real  estate.  If  a  contrary 
intent  is  inferable  from  the  will  itself,  it  cannot  be  disproved  by  ex- 
trinsic evidence.  If  it  is  not  thus  inferable,  and  may  be  ascertained  by 
the  weight  of  competent  evidence,  his  declarations  are  not  a  part  of 
such  evidence. 

Decree  of  the  probate  court  reversed.    Will  allowed. 


HILPIRE  V.  CLAUDE  et  al. 

(Supreme  Court  of  Iowa,  1899.     109  Iowa,  159,  80  N.  W.  332,  4G  L.  R.  A.  171, 

77  Am.   St.  Rep.  524.) 

Given,  J.*°  *  *  *  5.  Having  found  that  under  the  Code  of 
1873  the  subsequent  birth  of  a  legitimate  child  to  the  testator  before 
his  death  operated  as  a  revocation  of  his  prior  wills,  we  now  inquire 
whether  the  adoption  of  a  child  has  the  same  effect.  This  question 
is  before  this  court  for  the  first  time,  and,  owing  to  differences  in 
the  statutes  of  this  and  other  states,  we  find  but  little  aid  in  the  deci- 
de Part  only  of  the  opinion  Is  given. 


Ch.  7)  THE  REVOCATION  OF  WILLS.  299 

sions  of  other  courts.  The  language  of  our  statutes  is  very  broad, 
the  adoption  conferring  upon  the  adopted  child,  "all  the  rights,  privi- 
leges, and  responsibilities,  which  would  pertain  to  the  child  if  born  to 
the  person  adopting  it  in  lawful  wedlock."  Code  1873,  §  2307.  As 
if  to  emphasize  this  language,  it  is  further  provided  that  "the  rights, 
duties  and  relations  between  the  parent  and  child  by  adoption,  shall, 
thereafter  [i.  e.,  after  the  execution,  acknowledgment,  and  filing  of 
record  of  such  instrument],  in  all  respects,  including  the  right  of  in- 
heritance, be  the  same  that  exists  by  law  between  parent  and  child  by 
lawful  birth."    Id.,  §  2310. 

Plaintiff  cites  several  cases  wherein  the  right  of  adopted  children 
to  inherit  from  and  through  the  adopting  parent  was  passed  upon, 
but  in  none  of  them  is  the  question  before  us  considered.  In  Wagner 
V.  Vanier,  50  Iowa,  532,  it  was  held  that  the  adopted  child  could  in- 
herit from  his  natural  parents.  In  Warren  v.  Prescott,  84  Me.  483, 
24  Atl.  948,  17  L.  R.  A.  435,  30  Am.  St.  Rep.  370,  it  was  held  that 
an  adopted  child  can  take  a  legacy  given  to  one  of  its  adopting  parents, 
and  thus  prevent  the  legacy  from  lapsing  when  the  legatee  dies  before 
the  testator.  Othe-r  cases  cited  are  equally  foreign  to  the  question 
under  consideration. 

This  question  was  directly  considered  in  Davis  v.  Fogle,  124  Ind.  41, 
23  N.  E.  860,  7  L.  R.  A.  485.  The  court  says:  "The  question  pre- 
sented for  decision  is,  does  the  adoption  of  a  child,  under  the  statute 
of  this  state,  operate  to  revoke  an  antecedent  will  of  the  adopting 
father,  he  having  made  no  provision  in  the  will  or  otherwise  for  such 
adopted  child?"  The  statute  of  that  state  provides  that  from  and 
after  adoption  such  child  "shall  be  entitled  to  and  receive  all  the  rights 
and  interest  in  the  estate  of  such  adopted  father  or  mother,  by  descent, 
or  otherwise,  that  such  child  would  do  if  the  natural  heir  of  such 
adopted  father  or  mother."  Rev.  St.  1881,  §  825.  It  is  said,  "But 
we  think  the  statute  relating  to  the  revocation  of  wills  is  decisive  of 
the  question  involved  in  this  case ;"  and  it  was  held  that  as  that  stat- 
ute did  not  provide  that  the  adoption  of  a  child  should  operate  as  a 
revocation  of  a  prior  will,  and  as  revocations  can  be  only  made  as 
provided,  the  will  was  not  revoked  by  the  adoption  of  the  child. 

We  have  seen  that,  under  the  Code  of  1873,  revocations  of  wills 
were  not  limited  to  the  modes  provided  in  section  2329.  Therefore 
the  Case  of  Davis  is  not  authority  for  the  same  conclusion  in  this 
case.  The  same  is  true  of  In  re  Gregory's  Estate,  15  Misc.  Rep.  407, 
37  N.  Y.  Supp.  925.  The  statute  under  consideration  in  that  case 
contained  several  exceptions  to  the  child's  right  to  inherit,  while  ours 
contains  none.  In  Re  Comassi's  Estate,  107  Cal.  1,  40  Pac.  15,  28  L. 
R.  A.  414,  a  married  woman  had  executed  her  will,  and  thereafter, 
and  after  the  death  of  her  husband,  remarried ;  and  the  question  was 
whether  her  marriage  had  the  effect  of  revoking  her  will,  under  a 
certain  statute,  and  it  was  held  that  it  did  not.  The  will  was  contested 
by  a  child  that  had  been  adopted  prior  to  its  execution,  and  solely 


300  LAST   WILLS  AND   TESTAMENTS.  (Part   i 

Upon  the  claim  that  the  marriage  revoked  it.  In  Davis  v.  King,  89  N. 
C.  441,  the  question  was  whether  a  petition  and  decree  of  court  where- 
by Richard  W.  King  adopted  his  illegitimate  son  were  admissible  in 
evidence  to  show  a  revocation  of  the  will  offered  for  probate.  The 
court  held  that  wills  could  only  be  revoked  as  provided  by  statute, 
and  that  as  the  transcript  offered  did  not  purport  to  be  a  testamentary 
paper,  nor  to  contain  revocatory  words,  it  was  inadmissible. 

In  Re  Sunderland's  Estate,  60  Iowa,  732,  13  N.  W.  655,  the  child 
was  adopted  by  W.  P.  Sunderland  and  wife  under  a  special  act  of  the 
General  Assembly  of  Louisiana  providing  that  the  child  shall  inherit 
from  the  adopting  parents,  "as  if  she  were  their  legitimate  child,  with- 
out prejudice  to  forced  heirs,  if  any  there  be."  Laws  1860,  p.  131. 
It  was  also  provided  that,  should  the  child  survive  the  parents  and 
die  without  issue,  then  all  the  property  she  may  have  inherited  from 
either  of  said  parents  should  pass  to  the  heirs  of  said  parents.  W.  P. 
was  the  son  of  John  Sunderland,  and  died  before  his  father.  The 
adopted  child  claimed  that,  as  child  of  W.  P.,  she  was  entitled  to 
inherit  his  share  of  his  father's  estate,  under  section  2454  of  the  Code 
of  Iowa  of  1873,  which  is  as  follows:  "Grandchildren.  If  any  one 
of  his  children  be  dead,  the  heirs  of  such  child  shall  inherit  his  share 
in  accordance  with  the  rules  herein  prescribed  in  the  same  manner 
as  though  such  child  had  outlived  his  parents."  This  court,  resting 
the  case  solely  upon  said  special  act,  held  that  the  adopted  child  had 
no  right  to  share  in  the  estate  of  John  Sunderland. 

In  Sewall  v.  Roberts,  115  Mass.  262,  A.  had  in  1825  made  a  volun- 
tary conveyance  (without  reserving  any  power  of  revocation)  of  per- 
sonal property  to  an  annuity  company  in  trust  to  pay  the  income  to 
him  for  life,  and  upon  his  death  to  be  transferred  to  his  administrator 
in  trust  for  the  special  use  and  benefit  of  his  children,  and,  in  case  he 
died  without  issue,  then  to  his  mother,  if  she  survived  him,  and,  if 
not,  then  to  his  or  her  heirs  equally,  In  1865  he  adopted  a  child. 
"Held,  also,  that  the  adopted  child  took  the  remainder  of  the  property 
as  a  'child,'  under  the  settlement,  as  one  of  the  legal  consequences  and 
incidents  of  the  natural  relation  of  parents  and  children." 

It  is  manifest  that  these  cases  fall  short  of  determining  the  question 
under  consideration,  and  we  are  not  referred  to,  nor  do  we  find,  any 
one  that  does.  Our  statute,  in  declaring  the  rights  of  adopted  children, 
does  not  contain  any  exceptions,  as  do  those  to  which  our  attention 
has  been  called,  and  it  is  difficult  to  conceive  of  language  that  would 
more  clearly  place  them  upon  the  same  level  in  all  respects  with  chil- 
dren of  lawful  birth.  The  reasons  for  the  rule  that  subsequent  birth 
of  a  legitimate  child  to  the  testator  before  his  death  operates  as  a 
revocation  of  his  prior  will  apply  with  equal  force  to  a  subsequent 
adoption  under  a  statute  like  ours,  containing  no  exceptions  or  quali- 
fications, and  declaring  that  the  rights,  duties,  and  relations  between 
parent  and  child  by  adoption  shall  "in  all  respects,  including  the  right 
of  inheritance,  be  the  same  that  exist  by  law  between  parent  and  child 


Ch.  7)  THE  REVOCATION   OP   WILLS.  301 

by  lawful  birth."  While  these  relations  and  rights  are  statutory,  and 
may  not  be  enlarged  beyond  the  plain  meaning  of  the  statute,  that 
meaning  should  not  be  defeated  by  any  strained  construction. 

We  conclude  that  it  is  the  legislative  intention  to  place  adopted  chil- 
dren upon  the  same  level  as  children  of  lawful  birth,  in  all  respects 
and  therefore  that  the  decree  of  the  district  court  should  be  reversed.*^ 


In  re  HALL'S  ESTATE. 
DONALDSON  v.  HALL  et  al.  (HALL,  Intervener). 

(Supreme  Ctourt  of  Minnesota,  1909.     106  Minn.  502,  119  N.  W.  219,  20  L.  B. 

A.   [N.    S.]    1073.) 

Brown,  J.  The  facts  in  this  case,  as  disclosed  by  the  findings  of 
the  trial  court,  are  as  follows : 

In  1893  George  W.  Hall,  then  a  widower  about  56  years  of  age, 
with  several  children,  intermarried  with  Matilda  Hall,  appellant  here- 
in, who  was  about  30  years  of  age,  and  thereafter  they  continued  tc 
live  together  as  husband  and  wife  until  some  time  in  October,  1906, 
when  a  separation  took  place.  No  children  were  born  to  them.  Sub- 
sequent to  the  marriage,  in  April,  1904,  Hall  duly  made  and  executed 
his  last  will  and  testament,  in  and  by  which,  after  directing  the  pay- 
ment of  his  just  debts  and  funeral  expenses,  he  granted,  devised,  and 
bequeathed  "unto  my  wife,  Matilda  Hall,  one-third  of  the  remainder 
of  my  property,  both  personal  and  real,  which  shall  remain  after  the 
payment  of  my  debts  aforesaid,"  one-sixth  of  what  was  left  to  certain 
daughters  by  his  former  wife,  and  the  remainder,  after  the  payment 
of  certain  specified  legacies,  to  his  sons  of  the  former  marriage. 

Thereafter,  in  October,  1906,  Hall  commenced  an  action  for  di- 
vorce, charging  his  wife  with  adultery,  in  which  she  answered,  deny- 
ing the  charge  made  against  her.  During  the  pendency  of  this  action 
the  parties,  guided  by  their  attorneys,  entered  into  certain  negotia- 
tions for  the  settlement  of  their  property  rights  in  the  event  a  divorce 
was  granted  in  the  pending  action.  By  the  arrangement  then  made 
Hall  agreed  to  pay  to  his  wife  the  sum  of  $4,225  in  money  and  to  con- 
vey to  her  certain  real  estate  in  the  city  of  Hutchinson,  and  the  wife 
agreed  to  convey  to  him  a  small  tract  of  land  near  Stewart,  their  place 
,  of  residence.  The  deeds  were  duly  executed,  and  the  money  so  agreed 
to  be  paid  delivered  to  a  third  person,  to  be  by  him  delivered  to  the 
parties  in  accordance  with  the  terms  of  the  settlement  immediately 
upon  the  entry  of  a  decree  of  divorce.  It  was  further  understood  and 
agreed,  as  a  part  of  the  settlement,  that  the  wife  should  amend  her 
answer  in  the  divorce  action  by  including  therein  a  cross-bill  for  a 

41  See,  also,  Glascott  v.  Bragg,  111  Wis.  605,  87  N.  W.  853,  56  L.  R.  A. 
258  (1901);    Sandon  v.  Sandon,  123  Wis.  603,  101  N.  W.  1089  (1905). 


302  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

divorce  against  plaintiff  on  the  general  ground  of  his  habitual  drunk- 
enness. Thereafter  her  answer  was  duly  amended  accordingly.  The 
cause  was  brought  on  for  trial,  and  resulted  in  a  decree  of  divorce 
based  upon  the  allegations  of  defendant's  cross-bill. 

The  settlement  of  the  property  rights  was  then  completed  by  the 
payment  to  the  wife  of  the  money  and  the  delivery  of  the  deeds  of 
the  property  referred  to.  This  was  completed  on  May  1,  1907.  Mrs. 
Hall  claimed  no  alimony  on  the  final  hearing  of  the  divorce  case,  and 
the  judgment  therein  awarded  to  her  no  pecuniary  relief,  not  even  the 
costs  of  the  action.  The  amount  received  by  Mrs.  Hall  on  the  settle- 
ment amounted  to  practically  one-third  of  the  property  then  owned  by 
Hall.  Thereafter,  on  June  22,  1907,  30  days  after  the  divorce  and 
settlement,  Hall,  without  having  made  any  change  or  modification  of 
his  will,  by  which  he  gave  to  "my  wife,  Matilda  Hall,"  one-third  of 
all  his  property,  suddenly  died.  C.  R.  Donaldson  was  named  in  the 
will  as  executor,  and  he  properly  presented  it  to  the  probate  court  for 
allowance  and  probate. 

At  the  hearing  of  his  petition  certain  of  the  children  of  deceased 
appeared  and  contested  the  allowance  of  that  part  of  the  will  devising 
and  bequeathing  to  Mrs.  Hall  one-third  of  testator's  property,  on  the 
ground  that  the  will  in  that  respect  was,  by  the  settlement  and  adjust- 
ment of  the  property  rights  of  the  parties  in  the  divorce  action,  re- 
voked and  annulled  by  implication  of  law,  Mrs.  Hall  also  appeared 
as  intervener  and  claimed  under  the  will.  The  probate  court  sustained 
the  contention  of  contestdnts,  holding  that  the  provisions  made  for 
Mrs.  Hall  were  revoked  by  operation  of  law,  but  admitted  the  balance 
of  the  will  to  probate.  Mrs.  Hall  appealed  to  the  district  court,  where 
the  same  conclusion  was  reached,  and  she  then  appealed  to  this  court 
from  an  order  of  the  district  court  denying  her  motion  for  a  new  trial. 

The  assignments  of  error  challenge  certain  of  the  findings  of  the 
trial  court  and  raise  the  single  question  whether  the  divorce  and  prop- 
erty settlement  operated  by  implication  of  law  to  revoke  the  provisions 
made  in  deceased's  will  for  his  wife.  Our  examination  of  the  record 
leads  to  the  conclusion  that  all  the  findings  of  fact  are  sustained  by 
the  evidence.  It  would  serve  no  useful  purpose  to  enter  into  an  ex- 
tended discussion  of  the  evidence,  and  we  therefore  refrain. 

We  come,  then,  directly  to  the  main  question  in  the  case,  namely, 
whether  Hall's  will  was,  to  the  extent  of  the  provisions  therein  made 
for  his  wife,  revoked  by  implication  of  law.  An  express  revocation 
of  a  will  involves  an  inquiry  into  the  intention  of  the  testator,  and 
generally  the  manner  and  what  acts  will  constitute  a  revocation  in 
fact  are  expressly  prescribed  by  statute.  Page  on  Wills,  272 ;  2  Cur- 
rent Law,  2091 ;  In  re  Knapen's  Will,  75  Vt.  146,  53  Atl.  1003,  98  Am. 
St.  Rep.  808 ;   Rev.  Laws  1905,  §  3G65. 

At  common  law  certain  changes  in  the  condition  and  circumstances 
of  the  testator  worked  a  revocation  by  implication,  and  it  was  former- 
ly held  that  this  was  prima  facie  only,  and  open  to  rebuttal  by  proof 


Ch.  7)  THE  REVOCATION   OF   WILLS.  303 

that  the  testator  intended  his  will  to  remain,  notwithstanding  the 
change  in  his  circumstances.  The  rule,  however,  by  all  modern  au- 
thorities, is  that  the  presumption  of  law  arising  from  the  changed 
conditions  is  conclusive,  and  no  evidence  is  admissible  to  rebut  it. 
Marsh  v.  Roe,  8  Ad.  &  El.  14 ;  Gay  v.  Gay,  84  Ala.  44,  4  South.  42 ; 
Hoitt  V.  Hoitt,  63  N.  H.  498,  3  Atl.  604,  56  Am.  Rep.  530;  Hudnall 
v.  Ham,  183  111.  486,  56  N.  E.  172,  48  L.  R.  A.  557,  75  Am.  St.  Rep. 
124 ;  30  Am.  &  Eng.  Ency.  Law,  644,  and  cases  cited. 

The  rule  had  its  origin  with  the  ecclesiastical  courts  of  England, 
and  was  later  adopted  as  a  part  of  the  common  law.  4  Kent's  Comm. 
775;  Brody  v.  Cubit,  Dang.  31.  And  it  is  the  settled  law  in  nearly 
all  the  states  of  this  country,  where  not  abrogated  by  statute.  30  Am, 
&  Eng.  Ency.  Law,  643.  Our  statutes  on  the  subject  provide  that  no 
will  shall  be  revoked,  except  in  the  manner  there  pointed  out,  namely, 
by  some  other  writing  executed  by  the  testator  with  the  same  formali- 
ties with  which  the  will  itself  is  required  to  be  executed,  or  by  burning, 
obliterating,  or  destroying  the  same  with  the  intention  of  revoking  it, 
or  by  the  destruction  thereof  by  a  third  person  at  the  request  of  the 
testator  and  in  the  presence  of  witnesses.  To  these  restrictions  is 
added,  "But  nothing  in  this  section  shall  prevent  the  revocation  im- 
plied by  law  from  subsequent  change  in  the  condition  or  circumstan- 
ces of  the  testator,"  by  which  the  common-law  rule  of  implied  revo- 
cation is  affirmatively  adopted  as  the  law  of  this  state.  Rev.  Laws 
1905,  §  3665. 

Counsel  for  appellant  do  not  contend  that  the  common  law  is  not 
in  force  in  this  state,  but  do  claim  that  the  facts  here  presented  do  not 
bring  the  case  within  the  rule  as  properly  understood  and  limited. 
There  is  much  conflict  in  the  adjudicated  cases,  both  in  England  and 
in  this  country,  as  to  the  scope  and  limitations  of  the  rule.  In  other 
words,  authorities  are  not  agreed  respecting  the  character  of  the 
"change  in  the  condition  and  circumstances  of  the  testator"  essential 
to  give  rise  to  the  legal  presumption  of  revocation.  Some  courts  have 
restricted  the  rule  to  marriage  and  birth  of  issue  in  the  case  of  a  man, 
and  mere  marriage  in  the  case  of  a  woman.  Wogan  v.  Small,  11  Serg. 
&  R.  (Pa.)  141;  Jones'  Estate,  211  Pa.  364,  60  Atl.  915,  69  L.  R.  A. 
940,  107  Am.  St.  Rep.  581;  Page  on  Wills,  280.  Chancellor  Kent 
gives  a  broad  and  comprehensive  definition  of  the  rule  in  the  following 
language :  "Implied  revocations  are  founded  upon  the  reasonable  pre- 
sumption of  an  alteration  of  the  testator's  mind  arising  from  condi- 
tions since  the  making  of  the  will,  producing  a  change  in  his  previous 
obligations  and  duties."    4  Kent,  Comm.  521. 

While  cases  involving  a  changed  condition  resulting  from  the  mar- 
riage of  the  testator  or  testatrix  have  been  before  the  courts  most  fre- 
quently, and  new  conditions  so  brought  about  have  received  the  most 
attention,  the  authorities  generally  do  not  limit  the  application  of  the 
rule  to  a  state  of  affairs  thus  created.  To  restrict  the  rule  to  such 
cases  would  narrow  and  unduly  circumscribe  its  purpose.    The  differ- 


304  LAST  WILLS  AND  TESTAMENTS.  (Part  I 

ent  conditions  which  bring  the  rule  into  operation  are  fully  given,  and 
authorities  cited,  in  a  valuable  note  to  Graham  v.  Burch,  28  Am.  St. 
Rep.  344  (47  Minn.  171,  49  N.  W.  697).  It  is  there  stated  that  a 
revocation  by  implication  may  result  from  a  change  in  the  property 
of  the  testator,  or  from  a  change  in  his  family,  as  by  marriage,  or  in 
the  beneficiaries  named  in  his  will.  See,  also,  30  Am.  &  Eng.  Ency. 
Law,  644  et  seq. 

Of  course,  a  change  in  respect  to  property  or  family  relations  re- 
sulting from  the  act  of  the  testator  should  be  of  a  nature  to  justify 
the  inference,  arbitrary  though  it  be,  that  he  intended  to  revoke  his 
will,  either  in  whole  or  in  part,  or  that  a  moral  or  legal  duty  not  only 
would  require  but  prompt  a  change  in  the  disposition  of  his  property 
from  that  made  in  the  will.  In  other  words,  the  rule,  if  accorded  sub- 
stance and  merit,  must  serve  the  purpose  of  doing  by  implication  what 
the  testator  should,  in  justice  to  those  entitled  to  his  bounty,  have  done, 
had  his  attention  been  directly  called  to  the  matter  after  the  change 
of  circumstances  and  before  his  death.  The  rule,  it  is  true,  has  not 
generally  been  extended  so  far.  At  least  the  tendency  of  the  reported 
cases  has  been  to  restrict,  rather  than  enlarge,  its  scope. 

It  was  formerly  held  that  the  marriage  of  a  man  did  not  at  common 
law  revoke  his  will,  whether  executed  before  marriage  or  during  the 
continuance  of  a  previous  marriage.  Christopher  v.  Christopher,  4 
Burr.  3182;  Bowers  v.  Bowers,  53  Ind.  430;  Goodsell's  Appeal,  55 
Conn.  171,  10  Atl.  557.  But  that  doctrine  has  been  modified,  either 
by  statute  or  decisions  of  the  courts,  both  in  England  and  the  several 
states  in  this  country.  While  within  the  application  of  the  rule  the 
marriage  of  a  man  did  not  of  itself  revoke  his  pre-existing  will,  his 
marriage  and  birth  of  issue  did  so  operate.  Note  to  Young's  Appeal, 
80  Am.  Dec.  518.  The  marriage  of  a  woman,  however,  has  always 
been  held  to  revoke  her  will,  without  reference  to  the  birth  of  issue, 
and  this  because  of  her  legal  incapacity  after  marriage  to  dispose  of 
her  property.  But  this  has  also  been  changed  by  statvite.  Kelly  v.  Ste- 
venson, 85  Minn.  247,  88  N.  W.  739,  56  L.  R.  A.  754,  89  Am.  St.  Rep. 
545.  But,  as  already  suggested,  the  courts  are  not  in  full  harmony 
in  defining  the  scope  of  the  "changed  conditions  and  circumstances" 
giving  rise  to  the  rule  of  implied  revocation. 

Counsel  for  appellant  in  the  case  at  bar  insist  that  it  should  be  lim- 
ited to  such  changes  as  arise  from  the  marriage  of  the  man  and  the 
subsequent  birth  of  issue,  and  to  that  arising  from  the  marriage  of 
the  woman  with  or  without  subsequent  issue.  If  we  adopt  counsel's 
suggestion,  and  limit  the  rule  to  the  instances  mentioned,  then  the 
saving  clause  of  the  statute  above  quoted  would  have  nothing  what- 
ever to  act  upon,  for  by  section  3666,  Rev.  Laws  1905,  it  is  expressly 
declared  that  the  marriage  of  the  testator,  and  this  necessarily  in- 
cludes man  or  woman,  shall  revoke  a  previously  executed  will.  No 
reference  is  made  to  the  birth  of  issue.  Simple  marriage  annuls  a 
previous  testamentary  disposition  of  property.     So  that,  if  counsel's 


Ch.  7)  THE   REVOCATION   OF   WILLS.  30& 

contention  be  sound,  the  clause  in  section  3665,  reserving  the  com- 
mon-law rule  of  revocation  by  implication,  would  serve  no  purpose. 
We  must  therefore  look  further,  and  inquire  whether  the  facts  here 
disclosed,  the  divorce  and  property  settlement,  bring  the  case  within 
the  rule. 

Very  few  cases  are  found  where  the  precise  question  has  been  pre- 
sented or  decided,  though  it  seems  to  be  settled  that  a  divorce  alone 
does  not  revoke  a  previously  executed  will.  In  re  Brown's  Estate, 
139  Iowa,  219,  117  N.  W.  260;  Baacke  v.  Baacke,  50  Neb.  21,  69  N. 
W.  303;  Charlton  v.  Miller,  27  Ohio  St.  298,  22  Am.  Rep.  307;  Jones' 
Estate,  211  Pa.  364,  60  Atl.  915,  69  L.  R.  A.  940,  107  Am.  St.  Rep. 
581,  3  Am.  &  Eng.  Ann.  Cas.  221,  and  note;  Card  v.  Alexander,  48 
Conn.  492,  40  Am.  Rep.  187 ;  In  re  Broddington,  22  Ch.  D.  597,  25 
Ch.  D.  685.  It  is  probable  that  a  divorce  granted  at  the  suit  of  the 
wife,  with  alimony  expressly  decreed  to  be  in  lieu  of  all  her  rights  in 
the  property  of  the  husband,  testamentary  and  otherwise,  would  by 
implication  of  law  revoke  the  will  of  her  husband  in  so  far  as  it  made 
provision  for  her  (1  Underbill  on  Wills,  265),  though  In  re  Brown's 
Estate,'  139  Iowa,  219,  117  N.  W.  260,  seems  to  hold  otherwise. 

Lansing  v.  Haynes,  95  Mich.  16,  54  N.  W.  699,  35  Am.  St.  Rep. 
545,  and  Baacke  v.  Baacke,  50  Neb.  18,  69  N.  W.  303,  are  the  only 
cases  to  which  our  attention  has  been  called  where  facts  like  those  in 
the  case  at  bar  have  been  passed  upon.  In  the  Michigan  case  it  was 
held  that  when,  at  the  time  a  decree  of  divorce  is  granted,  the  parties 
to  the  action  settle  and  adjust  their  property  rights  by  mutual  agree- 
ment, without  mentioning  wills  theretofore  made  by  them,  the  decree 
of  divorce  and  settlement  constituted  an  implied  revocation  of  the  wills 
so  theretofore  made.  The  court  there  remarked  that  by  the  decree  of 
divorce  and  property  settlement  the  parties  became  strangers  to  each 
other,  neither  thereafter  owing  to  the  other  either  legal  or  moral  obli- 
gations or  duties,  and  that  there  was  therefore  a  complete  change  in 
their  relations,  within  the  rule  of  implied  revocation  of  wills.  The 
Nebraska  case  holds  to  the  contrary ;  but  the  decision  is  apparently 
upon  the  theory  of  a  strict  application  of  the  rule,  and  the  fact  of  the 
property  settlement  appears  not  to  have  been  deemed  of  much  conse- 
quence. 

Careful  reflection  and  consideration  of  the  subject  leads  us  to  the 
rule  of  the  Michigan  court.  It  appears  to  us  more  in  accord  with  the 
reason  and  basis  of  the  law,  in  harmony  with  the  elementary  rule  of 
right  and  wrong,  conflicts  with  no  equitable  or  substantial  right  of 
the  woman  in  such  case,  and  is  opposed  only  by  a  strict  adherence  to 
some  of  the  older  views  on  the  subject,  based,  however,  upon  the  com- 
mendable purpose  of  sustaining  the  directions  of  a  person  respecting 
the  disposition  of  his  property,  left  in  the  form  of  a  solemnly  executed 
will,  who  by  reason  of  his  death  is  no  longer  able  to  speak  for  him- 
self or  give  further  orders  or  directions  in  that  behalf. 
Cost.  Wills— 20 


306  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

We  recognize  the  importance  of  upholding  the  kst  wills  of  de- 
ceased persons,  and  we  recognize  the  wisdom,  also,  of  the  rule  of  im- 
plied revocations  by  a  change  in 'the  condition  and  circumstances  of 
the  testator.  If  the  rule  can  have  any  proper  or  legitimate  application 
in  any  case,  it  would  seem  to  cover  a  case  of  this  kind.  Here  the  tes- 
tator brought  suit  against  his  wife,  charging  her  with  adultery.  He 
was  then  an  old  man,  70  years  of  age,  and  with  a  view  to  a  severance 
of  all  relations  with  his  wife  he  entered  into  an  agreement  by  which 
she  was  to  procure  a  divorce  without  contest  by  him,  upon  the  con- 
summation of  which  he  made  over  to  her  in  property  and  money  prac- 
tically what  she  would  have  received  under  the  previously  executed 
will,  had  he  then  died,  and  precisely  what  she  would  have  received 
under  the  statute  had  he  died  intestate.  He  in  effect  withdrew  his 
charge  of  infidelity  and  voluntarily  settled  upon  her  all  she  could  or 
would  have  received  under  the  will.  He  died  within  30  days  there- 
after, without  having  changed  his  will,  and  the  wife  now  comes  into 
court  asking  for  another  third  of  his  property,  leaving  the  remainder, 
or  one-third,  to  his  children  by  his  first  wife. 

If  this  is  not  a  change  of  his  condition  and  circumstances,  within 
the  meaning  of  the  law,  then  the  rule  of  implied  revocation  upon  that 
ground  is  really  without  much  substance  or  merit.  His  obligations 
to  his  wife,  legal,  moral,  or  otherwise,  wholly  ceased  at  the  time  of  the 
divorce  and  settlement.  By  the  settlement  he  fully  discharged  all  le- 
gal duties,  and  the  inference  that  he  intended  the  allowance  in  full 
of  all  future  rights  ought  in  justice  and  good  conscience  to  be  the 
legal  conclusion.  We  so  hold.  Whether  the  fact  that  the  testator  in 
such  a  case  permits  his  will  to  remain  unchanged  by  express  revoca- 
tion for  a  number  of  years  after  the  divorce  and  settlement  would 
militate  against  the  conclusion  of  implied  revocation  we  need  not  de- 
termine. Testator  in  this  case  died  within  30  days  after  the  settle- 
ment, and  his  failure  expressly  to  revoke  within  that  time  certainly 
creates  no  inference  that  he  intended  his  will  to  continue  in  force. 

The  case  of  In  re  Brown's  Estate,  139  Iowa,  219,  117  N.  W.  2G0, 
wherein  the  Iowa  Supreme  Court  held  that  a  decree  of  divorce,  with 
an  award  of  alimony  to  the  wife,  was  not  an  implied  revocation  of  the 
will  of  the  husband,  is  not  in  point.  The  court  distinguishes  that  from 
the  Michigan  case  on  the  ground  that  the  property  settlement  was  not 
the  voluntary  act  of  the  husband,  and  therefore  no  legitimate  basis 
for  an  inference  of  an  intention  on  his  part  to  revoke  his  former  will. 

Order  affirmed.*^ 

42  See,  also,  Wirth  v.  Wlrth,  149  Mich.  687,  113  N.  W.  30G  (1907).  Com- 
pare the  case  where  a  gift  by  will  "to  my  said  wife  Emily"  was  construed  as 
a  sift  to  her  in  the  character  of  wife,  and  as  she  liad  a  previous  liusbaud 
living  and  undivorced  the  jrift  to  her  was  deemed  ineffective.  Collard  v.  Col- 
lard  (N.  J.  Prerof?.)  07  At).  190  (1907).  Soo,  also,  In  re  Boddington,  P.ndding- 
ton  V.  Clairat,  2.")  Ch.  D.  GS'i  (1SS4).  On  the  effect  of  divorce  to  revoke  a  gift 
by  will,  see  G9  L.  R.  A.  940,  note. 


Ch.  7)  THE  REVOCATION  OF  WILLS  307 


SECTION  5.— PRESUMPTION  AS  TO  REVOCATION 


McELROY  et  al.  v.  PHINK. 
(Supreme  Court  of  Texas,  1903.    97  Tex.  147,  76  S.  W.  753.) 

Gaines,  C.  J.*^  *  *  *  ^^^  ^yjj|  ^y^g  ^^q^  produced  but  there 
was  sufficient  evidence  introduced  by  the  proponent  of  the  will  to  estab- 
lish its  execution  and  contents,  and  that  it  could  not  be  found.   *     *     * 

The  authorities  are  practically  in  accord  upon  the  proposition  that 
where  a  will  which,  when  last  seen,  was  in  the  custody  of  the  testator, 
cannot  be  found  after  his  death,  a  presumption  arises  that  it  has  been 
revoked.  The  proposition  is  evidently  based  upon  the  theory  that  it  is 
a  reasonable  inference  from  the  facts  that  the  custodian,  who  in  such 
case  is  the  testator,  has  destroyed  it  for  the  purpose  of  revoking  it. 
On  the  other  hand,  there  is  authority  for  holding  that  when  at  last 
accounts  the  will  was  in  the  hands  of  some  one  other  than  the  testa- 
tor— and  especially  in  the  possession  of  one  to  whose  interest  its  pro- 
visions are  adverse — the  presumption  of  its  destruction  by  the  testator 
does  not  arise  from  the  mere  fact  that  it  cannot  be  produced. 

It  may  be  that,  if  the  will  is  shown  to  have  been  destroyed,  it  would 
not  be  presumed  that  it  was  the  act  of  some  one 'other  than  the  testa- 
tor, for  the  reason,  as  given  by  the  English  courts,  that  it  would  not 
be  presumed  that  the  custodian  had  committed  a  crime.  But  in  this 
case  the  testimony  traces  the  will,  when  last  seen,  into  the  possession 
of  the  husband  of  the  testatrix;  and  it  also  appears  therefrom  that 
by  the  instrument  all  her  property  was  devised  to  the  prop.onent,  and 
that  the  husband  was.  an  heir  to  her  estate.  It  does  not  show  that  the 
will  was  destroyed.  It  is  merely  shown  that  it  could  not  be  found. 
It  may  be  that  it  has  been  lost. 

While  it  may  not  be  permissible  to  infer  that  the  husband  had  de- 
stroyed it,  there  is  room  for  the  presumption  that  he  may  have  lost  it. 
It  is  no  offense  against  the  law  to  lose  an  instrument  in  writing,  and 
therefore  it  is  not  necessary  to  determine  in  the  case  whether  to  de- 
stroy the  will  of  another,  without  authority  to  do"  so,  is,  under  our 
law,  where  all  penal  offenses  are  defined  by  statute,  a  criminal  act, 
or  not.  Therefore  we  think  that  under  the  evidence  adduced  in  this 
case,  according  to  the  rule  generally  recognized  by  the  courts,  the  trial 
judge  was  at  least  authorized  to  find,  as  he  did  find,  that  the  will  had 
not  been  revoked.     *     *     * 

For  the  errors  pointed  out  [in  the  exclusion  of  evidence],  the  judg- 
ment is  reversed,  and  the  cause  remanded.** 

*3  Part  only  of  the  opinion  Is  given. 

44  See  Williams  v.  Miles,  68  Neb.  463,  94  N.  W.  705,  96  N.  W.  151,  62  L. 
R.  A.  383,  110  Am.  St.  Rep.  431  (1903) ;    Gavitt  v.  Moulton,  119  Wis.  35,  90 


308  LAST   WILLS  AND  TESTAMENTS.  (Part  1 


SECTION  6.— DEPENDENT  RELATIVE  REVOCATION 


ONIONS  V.  TYRER. 
(High  Court  of  Chancery,  1717.     2  Vern.  742.) 

Mr.  Tyrer,  in  1707,  made  a  will,  duly  attested  by  three  subscribing 
witnesses,  and  thereby  had  disposed  of  his  real  estate,  and  being  after- 
wards minded  to  make  some  alteration  in  his  will,  in  the  year  1711  he 
made  a  second  will  touching  his  real  estate,  and  with  a  clause  in  it  of 
revoking  all  former  wills ;  but  there  being  no  table  in  the  room  where 
the  testator  lay  sick  and  subscribed  his  will,  the  three  subscribing  wit- 
nesses did  not  attest  it  in  his  presence,  but  went  into  a  lower  room  out 
of  the  testator's  sight,  and  there  wrote  their  names  as  witnesses  to  the 
publishing  this  latter  will;  and  it  was  also  in  proof  in  the  cause  that 
there  being  two  parts  of  his  former  will,  one  whereof  was  in  his  cus- 
tody, he  called  for  that  which  was  in  his  own  custody,  and  directed  his 
wife  to  cancel  it,  and  the  witness  swore  she  heard  her  tear  it ;  and  the 
question  now  was,  whether  the  former  will  was  well  revoked,  or  not. 

First.  It  was  resolved,  that  although  there  was  an  express  clause 
in  the  latter  will  of  revoking  all  former  wills ;  yet  that  latter  will  being 
void,  the  witnesses  not  attesting  the  same  in  the  testator's  presence, 
that  would  not  amount  to  a  revocation,  it  being  intended  to  operate  as 
a  will,  and  not  otherwise  as  an  instrument  of  revocation ;  and  so  it 
was  adjudged  in  the  case  of  Eggleston  and  Speak,  3  Mod.  258,  1 
Shower,  89,  and  in  the  case  of  Hilton  and  King,  3  Lev.  86. 

Secondly,  where  there  were  duplicates,  and  two  parts  of  the  former 
will,  in  case  the  testator  duly  cancelled  and  tore  that  part,  which  was 
in  his  ow/i  custody  or  keeping,  that  would  be  an  effectual  cancelling 
of  the  will,  although  the  other  part  or  duplicate  remained  whole  and 
uncancelled ;  and  it  was  so  resolved  in  Sir  Edward  Seymour's  Case.*"^ 

Thirdly.  Lord  Chancellor  [Lord  Cowper]  was  of  opinion,  that 
the  former  will  stood  good;  for  the  latter  will  being  void,  and  not 
operating  as  a  will,  would  not  amount  to  a  revocation;  and  as  to  the 
actual  cancelling  of  the  former  will,  the  evidence  was  not  full  and  pos- 
itive, that  it  was  done ;  the  witness  thought  she  heard  the  wife  tear  it. 

N.  W.  395  (100.3) ;  Allen  v.  Morrison,  [1900]  App.  Cas.  604 ;  In  re  Miller's 
Will,  49  Or.  4r,2.  90  Pac.  1002,  124  Am.  St  Rep.  1051  (1907).  See,  also,  11 
Prob.  Rep.  Ann.  319.  note. 

For  a  general  discussion  of  lost  or  destroyed  wills,  including  proceedings 
for  their  probate,  see  110  Am.  St.  Rep.  445,  note;  38  L.  R.  A.  433,  note.  On 
the  admissibilit.v  of  declarations  of  the  testator  upon  the  issue  of  the  revoca- 
tion of  a  will  which  cannot  be  found,  see  14  .\m.  &  EJng.  Ann.  Cas.  284,  note. 

*5  But  the  destruction  of  one  copy  when  the  testa tx)r  understands  that  the 
duplicate  is  left  in  force  is  not  a  revocation.  Mauagle  v.  Parker,  75  N.  H. 
ir.9.  71  Atl.  037  (1908). 


Ch.  7)  THE   REVOCATION  OF   WILLS.  i?09 

It  is  plain  he  did  it  only  upon  a  supposition  that  he  had  made  a  latter 
will  at  the  same  time,  and  both  wills  as  to  the  main,  were  much  to  the 
same  effect,  and  with  little  variation  as  to  the  disposition  of  the  real 
estate ;  and  he  did  not  cancel  it  with  a  design  to  revoke  the  devises  as 
to  the  real  estate,  but  intended  to  do  the  same  thing  by  a  latter  will ; 
and  in  case  it  had  been  a  good  cancelling  of  the  will  at  law,  it  ought 
to  be  relieved  against,  and  the  will  set  up  again  in  equity,  under  the 
head  of  accident,  and  decreed  it  accordingly.*' 


JAMES  V.  SHRIMPTON. 
(High  Court  of  Justice.  Probate  Division,  1876.    1  P.  D.  431.) 
See  post,  p.  382,  for  a  report  of  the  case. 


CAMPBELL  v.  FRENCH. 

(High  Court  of  Chancery,  1797.    3  Ves.  Jr.  321.) 

The  will  of  the  testator,  dated  London,  23d  of  August,  1790,  and 
disposing  of  personal  estate  only,  contained  the  following  clause : 

"As  I  understand  that  my  late  sister  Margaret  Bell  has  two  grand- 
children living  in  Northumberland  county,  Virginia,  within  three  miles 
of  North  Cherry  Point  Church,  whose  names  are  Price  Campbell,  a 
grandson,  and  Pinkston  Campbell,  a  granddaughter,  I  give  to  each  of 
them  £500." 

•    A  codicil,  dated  the  5th  of  January,  1791,  contained  the  following 
clause : 

"And  as  to  the  legacies  or  bequests  given  or  bequeathed  by  my  will 
to  my  sister,  Margaret  Bell's  grandchildren,  I  hereby  revoke  such  leg- 
acies and  bequests;   they  being  all  dead." 

The  fact  of  the  death  of  the  legatees  was  not  true.  Pinkston  Camp- 
bell married  William  Atkins  in  America.  The  bill  was  filed  for  an 
account  and  payment  of  these  legacies. 

Evidence  proving  the  identity  of  the  plaintiffs  was'  read. 

LoRH  Chancellor  [Lord  Loughborough].*'^  ♦  *  *  j^.  appears 
to  me  there  is  no  revocation ;  the  cause  being  false ;  whether  by  mis- 
information or  mistake  is  perfectly  indifferent.  ♦  *  *  Declare 
the  legacies  are  not  revoked,  the  parties  being  alive.     ♦     *     * 

*«  The  destruction  by  the  testator  of  a  will  which  he  thinks  has  been 
■uperseded  by  a  new  invalid  will  is  held  to  be  no  revocation  of  the  destroyed 
will.  In  re  Estate  of  Irvln,  25  L.  T.  R.  41  (1908) ;  Dancer  v.  Crabb,  L.  R.  3  P. 
&  D.  98  (1873) ;  Wilbourn  v.  Shell,  59  Miss.  205,  42  Am.  Rep.  30?,  (1881).  See, 
also,  Giles  v.  Warren,  ante,  p.  245,  and  James  v.  Shrimpton,  post,  p.  382.  On 
revocation  by  mistake,  see  48  Am.  St.  Rep.  198,  202,  note;  6  L.  R.  A.  (N.  S.) 
1107,  note ;   1  Am.  &  Eng.  Ann.  Cas.  609,  note. 

*7  Part  only  of  the  opinion  is  given! 


310  LAST  WILLS  AND   TESTAMENTS.  (Part  1 

VARNON  V.  VARNON. 
(Kansas  City  CJourt  of  Appeals,  Missouri,  1896.    67  Mo.  App.  534.) 

Ellison,  J.*®  This  action  was  brought  to  contest  the  vaHdity  of  the 
will  of  plaintiff's  deceased  husband.  The  circuit  court  sustained  the 
will  as  to  all  but  what  was  designated  as  the  fifth  page.  The  widow 
appeals. 

The  will  was  written  on  seven  pages  of  paper.  We  discover  no 
reason  to  question  the  trial  court's  action  in  finding  the  testator  was 
of  sound  mind,  and  that  when  he  made  the  will  he  possessed  full  tes- 
tamentary capacity.  We  have  only  to  determine  a  question  of  law 
which  arises  on  the  established  facts.  The  material  portions  of  the 
will  disposed  of  the  property  to  the  widow  and  only  son,  in  equal 
parts ;  and  in  case  of  the  death  of  either  all  was  to  go  to  the  survivor. 
And  that  if  both  died  without  children,  then  the  brother  and  sister  of 
testator  were  to  take  the  property. 

That  portion  of  the  will  which  provided  that  if  the  son  should  die 
before  his  mother  she  should  take  the  whole  property,  and  that  por- 
tion which  provided  that  in  case  both  mother  and  son  died  without 
children  the  brother  and  sister  of  the  testator  should  take  the  prop- 
erty was  written  on  the  fifth  page — composed  the  whole  of  the  fifth 
page. 

It  appears  that  the  testator's  brother  wrote  the  will  and  that  the 
next  day  after  it  was  duly  executed,  plaintiff  became  dissatisfied  and 
made  known  her  objections  to  the  testator.  Her  objection  was  to  the 
provision  relating  to  testator's  sister.  She  insisted  that  the  sister  was 
not  entitled  to  any  interest,  however  remote,  in  the  estate.  The  testa- 
tor seems  to  have  concluded  her  objections  were  well  founded,  and  he 
directed  his  brother,  who  had  written  the  will,  to  tear  out  the  fifth 
page,  rewrite  it  as  it  was  except  to  omit  the  name  of  the  sister,  thus 
having  the  effect  to  cut  off  the  sister  and  leave  the  brother  as  the  sole 
legatee  if  the  mother  and  son  died  without  children.  The  brother 
did  as  directed;  so  that  the  will,  as  it  stood  when  probated,  included 
the  substituted  fifth  page.  It  was  this  fifth  page  the  court  rejected  and 
established  the  remainder.  Was  this  the  proper  disposition  of  the 
case?  The  statute  of  this  state  in  relation  to  revocation  of  wills,  is  as 
follows : 

"Sec.  8871.  No  will  in  writing,  except  in  the  cases  hereinafter  men- 
tioned, nor  any  part  thereof,  shall  be  revoked,  except  by  subsequent 
will,  in  writing,  or  by  burning,  canceling,  tearing,  or  obliterating  the 
same,  by  the  testator,  or  in  his  presence,  and  by  his  consent  and  diiec- 
tion." 

This  statute  means  that  there  may  be  a  partial  revocation  of  a  will, 
the  balance  remaining  intact.    This  is  announced  as  the  law  in  juris- 

*•  Part  ouly  of  the  opinion  is  given. 


Ch.  7)  THE   REVOCATION  OF  WILLS.  311 

dictions  governed  by  similar  statutes.  Bigelow  v.  Gillott,  123  Mass. 
103,  25  Am.  Rep.  32;  Schouler  on  Wills,  §§  389,  397.  And  there  is 
no  reason  why  this  may  not  be  accomplished  by  tearing  out  a  page, 
or  other  portion  which  it  is  intended  to  revoke.  Schouler  on  Wills,  § 
430. 

But  when  a  revocation  is  made  with  a  view  to  an  immediate,  other, 
and  different  disposition,  the  revocation  becomes  dependent  upon  the 
efficacy  of  that  other  disposition,  Schouler  on  Wills,  §  398 ;  1  Jarman 
on  Wills,  *135;  Wolf  v.  Bollinger,  62  111.  368;  Youse  v.  Forman, 
5  Bush  (Ky.)  345;  Stover  v.  Kendall,  1  Cold.  (Tenn.)  557;  Earl  of 
Ilchester,  Ex  parte,  7  Ves.  Jr.  348. 

In  the  case  at  bar  the  substituted  page  was  noneffective,  since  the 
will,  as  changed,  was  not  re-executed  or  witnessed  in  any  way  known 
to  the  law.  And  it  is  quite  apparent  to  us  that  the  testator  only  intend- 
ed the  revocation  of  the  fifth  page,  to  be  accomplished  by  a  substitu- 
tion of  another  page  with  identical  provisions  except  to  omit  the 
name  of  his  sister.  The  face  of  the  will  itself  demonstrates  this.  At 
the  bottom  of  page  4  was  the  provision  that  in  case  of  the  wife's  death 
all  the  property  should  go  to  the  son,  and  at  the  top  of  page  5  was  the 
provision  that  in  case  of  the  son's  death  all  should  go  to  the  wife. 
Although  this  latter  provision  was  on  page  5,  the  testator  had  no  de- 
sign or  intent  to  omit  it  from  the  will.  He  only  mtended,  as  just  stat- 
ed, to  omit  the  name  of  his  sister,  so  that  she  might  not,  in  the  con- 
tingency of  the  wife  and  son  dying  without  children,  become  a  bene- 
ficiary of  the  estate.  In  other  words,  he  only  intended  to  revoke  page 
5  by  the  immediate  substitution  of  another  page  with  the  change  indi- 
cated. 

His  intention  to  revoke  depended  upon,  and  was  intended  to  be  made 
by,  the  substituted  paper.  If  that  was. noneffective,  then  no  revocation 
was  had.  The  result  is  that  page  5  as  first  written  is  unrevoked  and 
remains  a  part  of  the  will.  The  fact  that  the  page  has  been  destroyed 
does  not  prevent  its  contents  from  being  established  by  competent 
evidence.  Jackson  v.  Jackson,  4  Mo.  211 ;  Dickey  v.  Malechi,  6  Mo. 
183,  34  Am.  Dec.  130;   Schouler  on  Wills,  §  385.     *     *     * 

We  will,  therefore,  reverse  the  judgment  and  remand  the. cause, 
,  with  directions  that  the  trial  court  enter  judgment  establishing  the  will 
as  written  before  the  attempted  alteration.    All  concur.** 


ATTORNEY  GENERAL  v.  LLOYD 

(High  Court  of  Chancery,  1747.     1  Ves.  Sr.  32.) 

John  Millington,  seised  of  a  considerable  real  and  personal  estate, 
made  a  will  in  1734,  and  gave  his  real  and  personal  estate  to  be  laid 
out  in  purchase  of  real  estate,  to  his  executors  and  other  trustees  and 

4  8  Compare  Rees  v.  Rees,  L.  R.  3  P.  &  D.  84  (1S73). 


312  LAST   WILLS   AND   TESTAMENTS.  (Part   1 

their  heirs,  to  apply  the  rents  and  profits  to  payment  of  some  legacies ; 
then  to  reimburse  themselves,  and  then  to  a  charity.  He  afterwards 
made  a  codicil  in  1736,  taking  notice  that  he  had  given  his  real  and 
personal  estate  to  certain  uses;  and  that  being  doubtful,  whether  by 
the  late  Mortmain  Act  his  devise  of  his  real  estate  to  the  charity  or 
part  thereof  would  be  good,  and  being  desirous  to  confirm  it  in  that 
case,  and  not  otherwise,  he  gives  so  much  of  his  real  and  personal  es- 
tate, as  could  not  pass  by  his  will,  to  the  use  of  his  nephew.  Milling- 
ton  Buckley,  at  his  age  of  twenty-one,  with  limitations  over,  on  his 
dying  without  issue,  with  proper  maintenance  till  that  age.  He  after- 
ward makes  another  codicil,  reciting  the  former  and  the  will,  and  that 
being  advised,  that  his  devise  to  the  charity  was  void  as  to  the  real 
estate,  though  not  as  to  the  personal,  and  being  desirous  to  continue 
it,  and  to  make  farther  provision  for  better  support  thereof,  he  gave 
his  personal  estate  to  his  executors  upon  trust,  that  if  it  cannot  be 
laid  out  in  land,  it  may  in  securities  for  the  same  charity ;  and  his  real 
estate  he  gives  unto  and  for  the  use  of  Millington  Buckley,  at  twenty- 
one;  and  declares,  that  it  is  his  opinion,  that  his  estate  at  L.  is  suffi- 
cient to  maintain  him  during  his  minority.  Upon  an  information  to 
have  the  will  and  codicils  so  established,  as  that  the  charity  might  be 
carried  into  execution,  it  was  decreed  at  the  Rolls  that  the  will  was 
well  proved,  and  that  the  trusts  should  be  performed,  and  that  a 
scheme  should  be  proposed  for  carrying  the  charity  into  execution : 
from  which  decree  the  defendant,  Millington  Buckley,  brought  the 
present  appeal. 

Lord  Chancellor  [Lord  Hardwicke].  I  am  very  doubtful  about 
this  case,  and  would  put  it  in  a  proper  way  of  being  determined.  This 
is  very  different  from  all  the  cases  cited.  The  question  of  revocation 
does  not  turn  upon  collateral  circumstances,  but  merely  on  the  words 
in  the  instruments  themselves;  which  make  it  differ  from  Onions  v. 
Tyrer;  indeed.  Lord  Cowper  there  says,  it  might  be  relieved  on  the 
head  of  accident;  but  I  do  not  know  how  he  could  come  at  it  in  a 
question  between  devisee  and  heir  at  law.  It  is  proper,  therefore,  for 
a  court  of  law ;  and  the  same  construction  must  be  made  as  there. 

The  first  reason  why  I  doubt,  is,  that  if  the  testator  had  intended, 
as  the  relators  contend,  that  this  was  a  revocation,  and  a  new  devise 
only  in  case  the  will  was  not  good,  he  would  have  left  it  on  the  first 
codicil;  and  no  occasion  for  making  a  new  one,  for  it  would  be  just 
the  same  with  respect  to  the  charity  as  on  the  first. 

Another  reason,  which  makes  me  doubt,  is  that  it  is  very  nice  to  say 
that,  because  the  reason  a  person  gives  fails,  therefore  his  devise 
should  fail.  I  do  not  know  how  far  that  will  extend ;  the  testator  has 
put  it  on  the  advice  he  received,  which  was  a  fact  of  his  own  knowl- 
edge; and  he  has  grounded  it  on  that  advice,  and  not  on  the  reality 
of  the  law.  He  might  do  it  in  order  to  quiet  the  doubtful  question; 
but  I  do  not  say  he  did  so. 


Ch.  7)  THE   REVOCATION  OF  WILLS.  313 

The  third  and  principal  reason  is,  I  doubt,  whether  this  disposition 
is  put  singly  on  the  point  of  law ;  for  considering  the  material  words 
"being  advised,"  and  the  subsequent  words,  who  can  tell  what  he 
meant  there?  The  codicil  was  made  two  years  after,  and  his  personal- 
estate  might  be  so  increased  as  to  be  a  sufificient  fund  for  the  charity ; 
for  all  this  together  might  be  his  reason,  and  it  is  impossible  to  say 
he  depended  on  one  more  than  another. 

I  give  no  opinion,  for  it  is  a  mere  point  of  law,  and  a  new  case ; 
and  will  send  it  into  B.  R.,  to  be  there  solemnly  argued,  and  reserve 
further  considerations  till  after  the  judge's  certificate."*" 


TUPPER  v.  TUPPER. 

(High  Court  of  Chancery,  1855.     1  K.  &  J.  665.) 

William  George  Tupper  made  his  will  in  1851  and  it  contained 
among  other  things  the  following  provision :  "In  acknowledgment  to 
Almighty  God  that  all  I  have  is  His  already,,  and  that  I  am  but  His 
steward,  I  hereby  offer  to  Him  the  sum  of  £850,  being  about  one  tenth 
of  my  property;    which  sum  of  i850  I  desire  may  be  raised  by  my 

60  The  question  was,  "Whether  the  testator's  real  estate  In  S.  and  S.  were 
well  devised  by  the  second  codicil,  dated  the  17th  of  March,  1736,  to  the  de- 
fendant M.  B.  for  life,  with  remainder  over  to  his  first  and  other  sons  in  tail 
mnle.  the  said  M.  B.  having  attained  his  age  of  21  years,"  etc.  The  court  cer- 
tified in  the  aflirmative,  whereupon  Lord  Hardwicke  declared  and  decreed  ac- 
cordingly.— Rep. 

In  Thomas  v.  Howell.  L.  R.  18  Eq.  Cas.  198,  211-212  (1874),  Sir  R.  Malins, 
V.  C,  said:  "With  regard  to  Attorney  General  v.  Lloyd,  it  was  a  very  pe- 
culiar case,  and  I  am  of  opinion  that,  if  the  question  had  turned  on  the  con- 
struction of  the  first  codicil,  the  decision  would  have  been  the  other  way. 
It  is  perfectly  clear  that,  the  reason  on  which  the  gift  was  made  having 
failed,  the  conditional  gift  would  not  be  good.  Then  came  the  second  codicil, 
by  which  the  testator  made  an  absolute  gift  of  the  realty  to  one  person,  and 
an  absolute  gift  of  the  personalty  to  the  charity  to  which  he  had  previously 
given  the  whole,  stating  as  a  reason  for  the  alteration  In  disposition,  his 
having  been  advised  that  a  gift  of  the  realty  would  have  been  void  under 
the  Statute  of  Mortmain.  This  was  a  mistake,  because  the  will  was  made 
before  the  act  of  9  Geo.  II,  but  the  codicil  was  upheld.  That  does  not  reach 
this  case,  because  here  there  is  no  complete  alternative  gift.  I  think,  how- 
ever, that  If  Attorney  General  v.  Lloyd  had  to  be  decided  now,  the  decision 
would  be  the  other  way."  But  in  Skipwith  v.  Cabell.  19  Grat.  (Va.)  758 
(1870),  Joynes,  J.,  said:  "It  Is  as  if  she  had  said,  'I  have  been  advised  that 
these  legacies  will  be  liable  to  confiscation,  and,  to  avoid  all  risk,  1  revoke 
them.'  She  chose  to  make  the  revocation  because  she  had  been  so  advised, 
but  she  does  not  put  it  on  the  soundness  of  the  advice,  and  the  revocation 
cannot  be  set  aside  by  showing  that  the  advice  was  unsound.  1  Powell  on 
Devises,  527;  Atty.  Gen.  v.  Lloyd,  3  Atk.  551."  So  in  Newton  v.  Newton, 
12  Ir.  Ch.  118  (1S61),  Lord  Chancellor  Brady  said:  "It  appears  to  me  that 
there  is  a  plain  distinction  between  the  recital  of  a  fact,  which  turns  oat  to 
be  erroneous,  and  the  recital  of  advice  or  opinion,  which  the  testator  acta 
upon."  Where  the  codicil  revokes  the  will,  giving  a  reason  which  the  tes- 
tator must,  know  to  be  untrue,  the  revocation  may  nevertheless  be  effective, 
Mendiuhalls  Appeal,  124  Pa.  387,  16  Atl.  881,  10  Am,  St  Rep.  590  (1889). 
See,  also,  Hayes'  Ex'r  v.  Hayes,  21  N.  J.  Eq.  265  (1871). 


314  LAST  WILLS  AND   TESTAMENTS.  (Part  1 

executors  hereinafter  named  out  of  my  pure  personal  estate,  and  such 
as  I  am  by  law  entitled  to  dispose  of  and  appropriate,  and  paid  by 
them  in  manner  following  (that  is  to  say):  To  the  treasurer  for  the 
time  being  of  the  Missionary  College  of  Saint  Augustine,  at  Canter- 
bury, the  sum  of  £300;  to  the  treasurer  for  the  time  being  of  the 
Society  for  Promoting  the  Employment  of  Additional  Curates  in 
Populous  Places,  the  sum  of  i300 ;  and  to  the  treasurer  for  the  time 
being  of  the  Tithe  Redemption  Trust,  the  sum  of  £250."  And  after 
giving  some  pecuniary  legacies,  the  testator  gave  all  the  residue  of 
his  property,  and  appointed  executors. 

By  a  codicil,  dated  in  1853,  he  made  the  following  gift:  "Whereas 
I  have  in  and  by  my  said  will  desired  my  executors  therein  named  to 
pay  the  following  legacies,  namely :  To  the  treasurer  for  the  time  be- 
ing of  the  Missionary  College  of  Saint  Augustine,  at  Canterbury,  the 
sum  of  £300;  to  the  treasurer  for  the  time  being  of  the  Society  for 
Promoting  the  Employment  of  Additional  Curates  in  Populous  Places 
the  sum  of  £300 ;  and  to  the  treasurer  for  the  time  being  of  the  Tithe 
Redemption  Trust,  the  sum  of  £250 ;  now  I  do  hereby  revoke  the  be- 
forementioned  legacies,  and  in  lieu  thereof  I  give  and  bequeath  to  the 
treasurer  for  the  time  being  of  the  House  of  Charity  in  Rose  Street, 
Soho,  aforesaid,  the  sum  of  £1,000,  for  the  extension  fund  of  the  said 
House  of  Charity;  which  I  direct  may  be  raised  by  the  executors  in 
my  said  will  named  out  of  my  pure  personal  estate,  and  such  as  I  am 
by  law  entitled  to  dispose  of  and  appropriate." 

The  extension  fund  of  the  said  House  of  Charity  was  a  fund  which 
was  being  raised  for  the  purpose  of  providing  a  freehold  site  and  a 
suitable  building  for  the  purposes  of  the  said  institution,  instead  of 
the  house  now  occupied,  and  the  gift  to  the  treasurer  of  the  House  of 
Charity  was  void."^^ 

Vice  Chancellor  Sir  W.  Page  Wood.  There  -is  some  difficulty  in 
this  case,  because,  although  the  difference  may  not  be  very  striking,  it 
is  not  precisely  the  case  of  a  gift  to  an  object  incompetent  to  take;  but 
I  think  that  it  falls  within  the  principle  of  the  case  in  which  there  was 
a  devise  to  a  parish ;  and  that  to  make  a  distinction  between  them 
would  be  carrying  the  refinements,  which  have  gone  very  far  already, 
farther  than  would  be  advisable.  I  concede  that  it  is  very  difficult  to 
make  a  satisfactory  distinction  between  Onions  v.  Tyrer,  1  P.  Wms. 
343,  and  those  cases  in  which  the  gift  fails  for  want  of  capacity  in  the 
devisee  to  take.  There  is  this  difference,  that,  in  cases  like  Onions  v. 
Tyrer,  the  testator  is  making  an  instrument,  which  he  intends  to  be 
effective  as  a  whole,  and  the  law  takes  away  one  half,  in  the  same 
manner  as  though  it  cut  off  the  operative  half  of  the  instrument,  leav- 
ing only  tlie  revoking  part  of  the  will ;  and  it  may  be  said,  that  it  was 
the  intention  of  the  testator  that  the  instrument  should  operate  in  an 
entire  and  not  in  a  mutilated  form ;  while  in  the  other  cases,  where  the 

»»  The  statement  of  the  case  Is  abbreviated. 


Ch.  7)  THE  REVOCATION   OP   WILLS.  315 

testator  has  made  certain  gifts,  which  are  invalid  in  law,  the  instru- 
ment is  in  a  sense  operative,  but  the  party  to  take  under  it  is  not  al- 
lowed to  receive  the  benefit. 

It  has  been  argued,  that  the  law  does  not  render  the  treasurer  of  a 
charity  absolutely  incapable  of  taking,  but  only  makes  void  the  gift  to 
him  in  trust  for  the  purposes  of  this  charity;  and,  therefore,  that  this 
part  of  the  will  is  blotted  out;  and  that  makes  the  case  still  more  like 
Onions  v.  Tyrer.  I  think,  however,  that  though  something  is  to  be 
said  for  it,  that  is  too  fine  a  distinction  to  make  any  real  difference 
between  this  case  and  that  in  which  there  was  a  gift  to  a  parish.  Al- 
though the  law  would  prevent  that  from  taking  effect  either  by  deed 
or  will,  yet  being  by  will,  in  which  the  testator  manifested  an  intention 
to  revoke  a  previous  gift,  it  was  held  that  the  revocation  must  take  ef- 
fect, although  the  gift  was  void.  French's  Case,  Roll.  Abr.  "Devise," 
0,4. 

In  this  case  the  gift  is  to  a  charity,  and  regarding  the  solemn  intro- 
duction to  his  will,  it  is  probable  that  the  testator  did  not  intend  to 
withdraw  from  pious  uses  the  sum  which  he  had  set  apart  for  them; 
but  that  does  not  indicate  an  intention  that  the  legatees  whose  legacies 
he  revokes  should  remain  recipients  of  his  bounty.  He  expressly  says 
by  the  codicil,  that  they  shall  not  receive  anything,  but  that  the  fund 
shall  be  given  to  another  object;  and  though  this  latter  cannot  take 
it,  I  cannot  speculate  on  whom  he  might  wish  to  confer  the  benefit  in 
such  an  event.  He  desired  to  devote  the  money  to  charity  generally. 
The  law  prevents  the  particular  object  which  he  has  designated  from 
taking  anything,  and  I  must  hold  that  the  revocation  remains  in  force, 
though  the  gift  by  the  codicil  may  be  void.°^ 

C2  See  Quinn  v.  Butler,  L.  R.  6  Eq.  225  (1868) ;  Vining  v.  Hall,  40  Miss.  83 
(18G6) ;  Price  v.  Maxwell,  28  Pa.  23  (1857) ;  Dudley  v.  Gates,  124  Mich.  440, 
83  N.  W.  97,  86  N.  W.  959  (1900) ;  Board  of  Com'rs  of  Rice  County  v.  Scott, 
88  Minn.  386,  93  N.  W.  109  (1903).  In  Laughton  v.  Atkins,  1  Pick.  (Mass.) 
535,  545,  546  (1823),  Parker,  C.  J.,  said:  "A  will  perfect  in  its  nature  is  made 
and  properly  executed,  but  is  incapable  of  operating  on  account  of  some 
incapacity  in  the  devisee  to  take.  This  nevertheless  operates  as  a  revoca- 
tion of  a  former  will,  because  all  the  requisites  of  the  statute  are  complied 
with,  and  it  is  inoperative  only  on  account  of  some  extrinsic  circumstance." 
In  Quinn  v.  Butler,  supra,  Lord  Romilly,  M.  R.,  said:  "I  entirely  assent  to 
the  observation  of  Lord  Justice  Page  Wood  in  Tupper  v.  Tupper,  1  K.  &  J. 
665,  where  he  remarks  that  the  testator  expressly  says  by  the  codicil  that 
the  legatees  shall  not  receive  anything,  but  that  the  fund  shall  be  given  to 
another  object,  and  that  although  this  latter  person  cannot  take  the  gift, 
the  court  cannot  speculate  on  whom  the  testator  might  have  wished  to 
confer  the  benefit  In  such  an  event." 

But  see  Security  Co.  v.  Snow,  70  Conn.  288,  39  Atl.  153,  66  Am.  St.  Rep.  107 
(1898),  where  the  testator  by  codicil  revoked  a  gift  in  his  will  to  his  daugh- 
ter Alice  and  in  lieu  thereof  gave  her  share  to  his  wife  in  trust  to  invest  and 
manage  and  pay  over  to  the  daughter  as  the  wife  should  deem  proper  and 
on  the  daughter's  death  to  pay  over  any  portion  left  to  the  daughter's  law- 
ful heirs.  The  gift  in  remainder  to  the  lawful  heirs  was  void  under  the 
state  statute  against  perpetuities,  and  testator's  wife  died  before  making 
ovet  any  considerable  portion  of  the  estate  to  the  daughter,  and  it  was 
held  that  upon  the  death  of  the  wife  the  original  gift  to  the  daughter  was 
restored  in  full  force.     Baldwin,  J.,  for  the  court  said  (70  Conn.  293,  294,  39 


316  LAST   WILLS   AND   TESTAMENTS.  (Part   1 

In  re  GOODS  OF  MORESBY. 
(Prerogative  Ckjurt  of  Canterbury,  1S28.    1  Hagg.  Ecc.  378.) 

This  was  an  application  from  the  widow  of  Lieutenant  Moresby, 
R.  N.,  that  probate  of  his  will,  dated  on  the  25th  of  January,  1821, 
might  be  granted  to  her  as  sole  executrix ;  and  in  support  of  her  ap- 
plication she  made  the  following  afifidavit: 

"That  she  was  the  relict  of  the  deceased,  sole  executrix,  and  uni- 
versal legatee  for  life  named  in  his  will,  duly  executed  and  dated  the 
26th  of  January,  1821 ;  that  shortly  after  this  period  the  deceased 
left  England,  in  the  command  of  a  private  merchant  vessel,  taking  with 
him  this  will,  and  proceeded  with  his  wife  to  Peru;  that  after  their 
arrival,  they  resided  principally  on  board,  but  that  during  a  temporary 
absence  of  Lieutenant  Moresby,  the  vessel  with  all  his  efifects  and 
papers,  including  his  will,  was  captured  by  pirates,  but  was  soon  after- 
wards retaken ;  that  on  the  occasion  of  such  capture,  the  deceased 
lost  several  papers  of  consequence,  and  expressed  his  firm  belief  to 
his  wife  that  his  will  had  then  been  destroyed ;  that  the  deceased,  as 
she  has  been  informed,  and  verily  believes,  whilst  at  the  city  of  Boli- 
var, was  attacked  with  the  illness  of  which  he  died;  that  on  the  l^th 
day  of  February,  1827,  the  day  before  his  death,  being  incapable  of 
writing,  and  fearing  he  might  die  intestate,  he  sent  for  a  notary,  in 
whose  presence,  and  that  of  four  other  witnesses,  he  made  a  nuncupa- 
tive will  by  declaring,  that  in  contemplation  of  his  death,  he  nominated 
and  appointed  two  executors — both  resident  in  the  city  of  Bolivar — 
and  his  wife  sole  heiress,  and  revoked  all  his  other  testamentary  dis- 
positions; but  that  the  said  will  was  not  reduced  into  writing  in  the 
lifetime  of  the  deceased." 

Mrs.  Moresby  further  made  oath,  "that,  upon  the  renunciation  of 
the  two  executors  in  the  proper  court  at  Lima,  she  there  duly  proved 
the  nuncupative  will,  and  administered  the  effects  in  Peru ;  and  that 
shortly  before  the  deceased's  death,  and,  as  she  verily  believes,  while 
he  was  at  Bolivar  in  his  last  illness,  she  discovered  among  his  papers 
on  board,  the  will,  dated  26th  January,  1821,  but  that  he  died  in  ig- 
norance of  that  circumstance."  The  affidavit  further  stated,  that  both 
the  executors  were  resident  in  the  city  of  Bolivar,  or  some  other  part 
of  Peru,  of  which  one  was  a  native. 

Atl.  155,  66  Am.  St.  Rep.  107) :  "The  revocation  of  his  former  provision 
for  Mrs.  Burrill  [the  daughter]  was  indissolubly  coupled  with  the  creation 
of  the  substituted  provision.  It  may  be  given  effect,  so  far  as  the  substitu- 
tion is  valid,  but  no  farther,  because  so  only  can  the  plain  purpose  of  the 
testator  be  attained,  and  the  mutual  dependence  of  the  two  articles  of  the 
codicil  presented.  The  whole  instrument  was  a  single  testamentary  act, 
and  muBt  Ite  read  as  if  the  testator  had  expressly  declared  that  he  revoked 
the  gift  made  to  Alice  In  his  will  simply  to  put  if  in  a  different  form.  The 
rule  of  construction  upon  which  we  proceed  is  analogous  to  that  governing 
a  revocation  which  is  grounded  on  a  state  of  facts  which  proves  not  to  exist. 
It  falls  when  its  foundation  falls." 


Ch.  7)  THE  REVOCATION  OP  WILLS.  31T 

The  only  property  of  the  deceased  in  this  country  consisted  of  about 
£500  due  for  arrears  of  half  pay. 

Lushington.  The  question  is,  whether  a  nuncupative  will  made  and 
proved  in  Peru  supersedes  a  prior  will  written  and  executed  in  this 
country— whether  the  Statute  of  Frauds  (29  Car.  II,  c.  3,  §  22)  does 
or  does  not  affect  such  a  case.  The  widow,  in  asking-  probate  of  the 
will  of  1821,  waives  an  interest  which  she  would  take  under  the  will  of 
1827 — in  the  former,  she  has  but  a  life  interest — in  the  latter,  she  is 
absolute  universal  legatee. 

Per  Curiam.  It  is  not  necessary  here  to  decide  the  question  (upon 
which  there  may  be  some  doubt),  whether  the  Statute  of  Frauds 
would  apply  to  the  nuncupative  will  made  in  Peru.  Both  wills  contain 
nearly  the  same  disposition,  and  give  the  whole  property  to  the  wife; 
the  latter  absolutely ;  the  former,  of  which  she  is  content  to  take  pro- 
bate, for  life  only.  It  appears  that  the  deceased  did  not  intend  to  re- 
voke the  will  of  1821,  but  supposing  it  to  be  lost,  and  being  unwilling 
to  die  intestate,  he  made  the  nuncupative  will.  As,  however,  the  for- 
mer has  been  recovered,  there  is  no  objection  to  probate  thereof  being 
granted  to  the  widow  and  universal  legatee  for  life. 

Motion  granted."' 


POWELL  v.  POWELL. 

(Court  of  Probate,  1866.    L.  R.  1  P.  &  D.  209.) 

Sir  J.  P.  Wilde.***  The  testator  in  this  case  made  a  will  on  the  3d 
of  March,  1862,  and  a  second  will,  revoking  the  first,  on  the  29th  of 
March,  1864.  In  1865  he  destroyed  the  will  of  1864,  and  the  question 
is,  whether,  by  that  act  of  destruction,  the  will  of  1864  has  been  le- 
gally revoked,  seeing  that  his  object  in  the  act  of  destruction  was  to 
set  up  the  will  of  1862.  It  is  not  contended  that  effect  could  be  given 
by  law  to  this  object,  but  failing  that,  it  is  argued  that  effect  ought  not 
to  be  given  to  the  destruction  of  the  will  of  1864  as  an  act  of  revoca- 
tion. I  conceive  that  the  doctrine  of  dependent  relative  revocation 
properly  applies  to  facts  such  as  this  case  involves.  This  doctrine  is 
based  on  the  principle  that  all  acts  by  which  a  testator  may  physically 
destroy  or  mutilate  a  testamentary  instrument  are  in  their  nature 
equivocal.  They  may  be  the  result  of  accident,  or,  if  intentional,  of 
various  intentions.  It  is,  therefore,  necessary  in  each  case  to  study 
the  act  done  by  the  light  of  the  circumstances  under  which  it  occur- 
red, and  the  declarations  of  the  testator  with  which  it  may  have  been 
accompanied.  For  unless  it  be  done  animo  revocandi,  it  is  no  revoca- 
tion. 

5  3  See  note  to  Brook  v.  Warde,  ante,  pp.  229,  230. 
6*  The  statement  of  tacts  is  omitted. 


318  LAST   WILLS  AND  TESTAMENTS.  (Part  1 

What,  then,  if  the  act  of  destruction  be  done  with  the  sole  intention 
of  setting  up  and  establishing  some  other  testamentary  paper,  for 
which  the  destruction  of  the  paper  in  question  was  only  designed  to 
make  way?  It  is  clear  that  in  such  case  the  animus  revocandi  had 
only  a  conditional  existence,  the  condition  being  the  validity  of  the 
paper  intended  to  be  substituted,  and  such  has  been  the  course  of  de- 
cision in  the  various  cases  quoted  in  argument. 

But  then  it  is  said,  that  this  method  of  reasoning  has  only  hitherto 
been  applied  to  cases  in  which  the  destruction  of  the  script  has  accom- 
panied the  execution  of  the  instrument  intended  in  substitution ;  and 
that  no  decided  case  can  be  found  in  which  the  instrument  intended  to 
be  established  has  been  a  long  previously  executed  paper.  But  I  fail 
to  perceive  a  distinction  in  principle  between  the  two  cases.  For  what 
does  it  matter  whether  a  testator  were  to  say,  "I  tear  this  will  of  1860 
because  I  have  this  day  (1st  of  January,  1861)  executed  another  de- 
signed to  replace  it";  or,  "I  tear  this  will  of  1860  because  I  desire  and 
expect  that  the  effect  of  my  so  doing  will  be  to  set  up  my  old  will  of 
1840?"  In  either  case  the  revocatory  act  is  based  on  a  condition,  which 
the  testator  imagines  is  fulfilled.  In  both  cases  the  act  is  referable, 
not  to  any  abstract  intention  to  revoke,  but  to  an  intention  to  validate 
another  paper ;  and  as  in  neither  case  is  the  sole  condition  upon  which 
revocation  was  intended  fulfilled,  in  neither  is  the  animus  revocandi 
present. 

It  is  only  necessary  to  add  that,  in  the  above  observations,  it  has 
been  assumed  that  the  act  of  destruction  was  referable,  wholly  and 
solely,  to  the  intention  of  setting  up  some  other  testamentary  paper. 
And  such  was,  I  think,  upon  the  evidence  given  in  this  case,  the  rea- 
sonable conclusion  of  fact.  Cases  may,  and  probably  will,  arise  in 
which  the  intention  is  either  mixed  or  ambiguous,  and  such  are  for 
future  consideration. 

The  only  case  cited  that  requires  special  mention  is  that  of  Dickin- 
son v.  Swatman,  30  L.  J.  (P.  M.  &  A.)  84.  But  Sir  C.  Cresswell,  in 
that  case,  does  not  appear  to  have  been  satisfied  that  the  sole  inten- 
tion in  destroying  was  to  set  up  the  previous  will.  He  is  reported  to 
have  said :  "At  all  events,  to  make  it  a  case  of  dependent  relative 
revocation,  you  would  have  to  show  that  he  did  not  intend  to  revoke 
the  second  will  unless  by  doing  so  the  first  would  have  been  revived." 

The  court  pronounces,  therefore,  for  the  will  of  the  29th  of  March, 
1864,  as  contained  in  the  draft  thereof  produced  and  sworn  to  by  Mr. 
Newman,  the  attorney  who  made  it. 

The  costs  of  all  parties  out  of  estate. 


Ch.  7)  THE  REVOCATION   OF  WILLS.  S19 

In  re  EMERNECKER'S  ESTATE. 

Appeal  of  AARON. 

(Suprem©  Court  of  Pennsylvania,  1907.    218  Pa.  369,  67  Atl.  701.) 

Penrose,  J.,  of  the  court  below,  made  the  following  statement  of 
the  facts  herein :  ' 

"The  petition  for  appeal  avers  that  the  decedent  died  May  13,  1905 ; 
that  on  July  16,  1903,  she  executed  a  will  giving  all  her  estate,  real 
and  personal,  to  her  granddaughter,  the  petitioner,  who,  from  the  time 
she  was  13  years  old,  had  lived  with  and  given  to  her  her  wages  and 
had  aided  in  supporting  her ;  that  the  decedent  had  often  declared  her 
intention  to  leave  the  whole  of  her  estate  to  the  petitioner,  because  the 
money  of  the  latter  had  gone  into  it ;  that  the  decedent  was  a  'per- 
son of  little  education  and  very  susceptible  to  the  influence  of  her 
friends  and  neighbors  and  those  with  whom  she  constantly  associated, 
and  was  so  anxious  to  have  her  estate  go  to  the  petitioner  that  she 
constantly  discussed  her  will,'  after  it  had  been  so  executed,  with 
them.    *    *    * 

"When  the  will  was  drawn,  the  testatrix,  an  elderly  German  woman, 
was  under  the  impression  that  the  provision  in  favor  of  her  grand- 
daughter, to  the  exclusion  of  her  children  and  other  grandchildren, 
would  be  invalid  unless  she  gave  a  nominal  amount,  at  least,  to  each 
of  those  so  excluded;  but  upon  the  assurance  of  Mr.  Braun,  by  whom 
it  was  drawn,  that  this  was  unnecessary,  she  executed  it  in  the  pres- 
ence of  two  witnesses.  Notwithstanding  this  she  appears  to  'have  been 
uneasy  on  the  subject,  and  in  April,  1905,  about  three  weeks  before 
her  death,  she  had  a  conversation  with  Mrs.  Scheidt,  an  old  friend, 
who  told  her  that  the  will  was  not  good  because  of  the  omission  of 
gifts  to  her  children  of  at  least  $1.  A  week  or  ten  days  later,  in  a 
conversation  with  another  friend,  Mrs.  Bolst,  she  spoke  of  her  will 
with  reference  to  what  Mrs.  Scheidt  had  said  to  her  on  the  subject, 
and  declared  that  she  would  'make  another  will  so  that  nobody  will 
be  able  to  take  anything  from  the  property  what  she  knows  she  wished 
to  will  to  Ellie.'  She  then,  in  the  presence  of  Mrs.  Bolst,  tore  the  will 
up  and  threw  the  pieces  into  the  fire,  saying  to  her  that  'on  the  first 
fine  day'  they  (the  decedent  and  Mrs,  Bolst,  who  also  wanted  to  have 
her  own  will  drawn)  would  go  to  'Ladner,  to  Eighth  and  Green,'  to 
have  him  'draw  a  new  will,'  in  which  she  would  give  to  each  of  her 
children  $1,  'and  for  Ellie  everything  she  had  in  her  possession,  be- 
cause she  was  working  for  her.'  At  this  time  the  decedent  appeared 
to  be  in  perfect  health,  but  when,  about  a  week  later,  on  Friday  morn- 
ing, Mrs.  Bolst  called  to  go  with  her  to  Mr.  Ladner's,  she  found  that 
she' had  been  taken  sick  the  previous  night.  She  died  the  next  day." 
Per  Curiam.^ '^    This  case  affords  an  illustration  that  may  almost  be 

B»  Part  of  the  statement  of  facts  is  omitted. 


^20  LAST   WILLS   AND   TESTAMENTS.  (Part  1 

called  pathetic  of  the  persistency  of  popular  error.  The  notion  that 
to  disinherit  the  heir  he  must  be  "cut  off  with  a  shilling"  (for  the 
probable  origin  of  which  see  Newlin's  Estate,  209  Pa.  456,  58  Ati. 
846,  68  L.  R.  A.  464),  started  more  than  300  years  ago,  never  was  the 
law  either  in  England  or  Pennsylvania,  and  yet  survives  with  such 
potency  as  to  lead  to  results  apparently  as  unjust  as  they  were  un- 
intended.^® The  undisputed  facts  of  this  case  do  not  admit  of  any 
question  as  to  the  legal  result,  however  much  we  may  be  impressed 
that  the  testatrix's  act  was  induced  by  an  erroneous  belief  as  to  the 
law.  She  intentionally  destroyed  the  will,  and  declared  she  had  done 
so  with  intent  to  make  another.  She  knew  what  she  was  doing,  and 
the  effect  of  it,  and  she  did  it  animo  revocandi,  with  intent  to  produce 
that  effect.  Her  reasons  were  not  matter  of  inquiry  for  the  court. 
Whether,  if  she  had  felt  sure  that  the  will  already  executed  would  ac- 
complish what  she  wanted  to  do,  she  would  have  changed  it,  we  may 
speculate,  but  we  do  not  know. 

As  was  well  said  by  the  learned  judge  below:  "She  was  aware  that, 
until  this  new  will  was  executed,  she  was  without  any  will  at  all,  and 
the  time  of  execution  was  left  indefinite.  Her  friend  was  to  call  the 
'first  fine  day'  to  go  with  her  to  have  it  drawn.  This  was  merely  the 
expression  of  an  unwritten  intention  to  do  something  in  the  future, 
and,  no  matter  how  fully  her  mind  was  then  made  up,  there  might  be 
a  change  of  intention  at  any  time  before  it  was  permanently  expressed 
in  writing ;  and  whether  the  intended  provision  for  her  children  would 

58  Newlin's  Estate,  supra,  finds  the  explanation  In  the  Pennsylvania  stat- 
ute which  provides  that  where  a  person  who  has  made  a  will  afterwards 
marries  and  has  a  child  or  children  not  provided  for  in  the  will,  and  dies 
leaving  a  widow  or  child,  or  both,  he  shall  be  deemed,  as  regards  such  widow 
or  after-bom  child  or  children,  to  have  died  intestate,  and  they  shall  take 
accordingly.  The  court  points  out  that  "the  basis  of  the  rule  as  to  revoca- 
tion of  wills  by  the  subsequent  marriage  and  birth  of  children  to  the  testa- 
tor is  the  latter's  implied  intention  as  to  his  disposition  of  his  property  under 
such  change  of  circumstances.  *  *  *  The  statute  is  founded  on  the  same 
presumption  that  the  unborn  child  was  not  in  contemplation  of  the  testator 
when  he  made  his  will,  and  that.  If  he  had  been,  he  would  have  changed  the 
provisions.  It  gave  the  unborn  child  no  greater  rights  in  the  parent's  estate 
than  the  living  children,  but  It  did  raise  in  his  favor  a  legal  presumption 
that  rerpiired  a  definite  provision  to  overcome.  It  is  like  the  Roman  law 
from  which  the  i)rlnciple  was  borrowed  that,  if  a  child  was  passed  over 
without  mention,  it  was  presumed  that  he  had  been  omitted  by  accident,  but 
if  he  had  any  legacy,  however  small,  it  was  held  to  show  that  the  omission 
was  intentional,  and  no  querela  iiiofliciosi  testamenti  was  allowed.  'Hence 
probably,'  says  Rlackstone,  'has  arisen  that  groundless  vulgar  error  of  the 
necessity  of  leaving  the  heir  a  shilling  In  order  to  disinherit  him  effectually.' 
2  Com.  503.  The  statute  •  •  *  makes  no  requirement  that  the  child 
shall  be  fully  or  equally  provided  for.  ♦  •  •  All  that  It  does  require  Is 
rhat  he  shall  have  the  child  in  mind  and  shall  make  clear  his  intention  that 
the  will  shall  apply  to  it."  2(t9  Pa.  4(>^40.->.  58  Atl.  849.  08  L.  R.  A.  4(;4. 
Under  similar  statutes  In  a  number  of  slates  children  unintentionally  not  pro- 
vided for  by  will,  whether  after-bom  children  or  others,  take  as  If  the  testa- 
tor bad  died  intestate.  See  cases  and  notes  in  part  II.  chapter  II,  §2,  post,  on 
"Pretermitted  Heirs."  No  set  sum  seems  to  be  required  to  disinherit  a  child 
■under  any  of  those  statutes. 


Ch.  7)  THE  REVOCATION  OF   WILLS.  321 

be  substantial  or  merely  nominal  cannot  be  known.  A  will  giving  even 
a  dollar  to  each  child  would  be  a  different  will  from  the  one  destroyed, 
and  the  dollar  so  given  could  be  demanded  by  the  legatees." 

It  seems  to  be  a  hard  case,  but  there  is  no  remedy,  without  making 
the  bad  law  which  such  cases  are  said  to  invite.    Decree  affirmed.*^ 


DIXON  V.   SOLICITOR  TO  THE  TREASURY. 
(High  Court  of  Justice,  Probate  Division.     [1905]  P.  42.) 

Probate  Action.  The  plaintiff,  as  sole  executor,  propounded  a  will 
dated  July  7,  1894,  of  James  Alexander  Shaw,  who  died  on  February 
8,  1904. 

The  deceased  had  no  known  relatives,  and  the  Crown,  as  interested 
in  the  event  of  an  intestacy,  was  made  defendant  in  the  action,  and 
pleaded  that  the  deceased  mutilated  his  said  will  by  cutting  off  there- 
from, with  a  pair  of  scissors,  his  signature,  and  by  erasing  parts  of 
the  document  with  the  intention  of  revoking  the  same ;  that  the  will 
was  thereby  revoked;   and  that  the  deceased  died  intestate. 

The  plaintiff,  in  reply,  denied  that  the  acts  alleged  in  the  statement 
of  defense  were  done  (if  at  all)  with  the  intention  to  revoke  the  will ; 
and,  further,  that  the  acts  of  revocation  (if  any)  were  accompanied 
with  an  intention,  on  the  part  of  the  deceased,  to  execute  a  new  will, 
and  were  conditional  on  such  new  will  being  executed. 

It  appeared  from  the  evidence  adduced  at  the  trial,  which  was  held 
before  Gorell  Barnes,  J.,  and  a  special  jury,  that  the  deceased  a  few 
.days  before  his  death  gave  instructions  to  a  solicitor  for  a  new  will, 
and,  after  sending  for  the  will  of  1894,  there  and  then  cut  oflf  his  sig- 

BT  "It  is  said,  and  indeed  it  would  seem  from  the  testimony,  that  Ignatius 
Semmes  did  not  intend  to  die  intestate;  but,  however  that  may  be,  we 
cannot  make  a  will  for  him.  By  the  will,  which  is  now  attempted  to  be 
set  up,  he  had  disposed  of  the  whole  of  his  estate  to  his  wife,  in  trust 
for  the  'use  and  support  of  herself,  and  the  benefit,  education  and  sup- 
port,' of  his  infant  son  until  he  should  arrive  at  the  age  of  twenty-one 
years,  when  he  bequeathed  one-half  of  his  personal  property  absolutely 
to  his  wife;  but,  she  dying,  he  struck  out  his  own  signature  and  the 
names  of  the  subscribing  witnesses,  and  made  a  memorandum  at  the  bot- 
tom of  the  will,  assigning  as  a  reason  for  what  he  had  done  that  his  wife's 
death  had  rendered  it  necessary  to  make  another  will.  If  that  was  not  a 
revocation,  it  would  be  found  difficult  to  revoke  a  will  by  canceling.  In 
Burtenshaw  v.  Gilbert,  1  Cowp.  49,  which  was  cited  in  argument,  there 
were  two  wills,  and  after  the  death  of  the  party,  the  second  will,  with  a 
duplicate  of  the  first,  which  he  had  kept  himself,  were  foimd  together  among 
his  papers  both  canceled ;  and  it  was  proved  that  he  had  sent  for  an  attor- 
ney to  prepare  another  will,  but  lost  his  senses  before  it  could  be  done.  It 
was  not  doubted  that  the  second  will  was  revoked.  The  only  question  raised, 
was  whether  the  revocation  of  the  second  will  did  not  set  up  the  uncanceled 
duplicate  of  the  first,  and  it  was  determined  that  it  did  not.  That  case 
surely  cannot  be  called  in  aid  of  this  will."  Buchanan,  C  J.,  in  Semmes  v 
Semmes,  7  Har.  &  J.  (Md.)  3S8,  391  (1826). 

Cost.  Wills— 21 


322  LAST  WILLS   AND  TESTAMENTS.  (Part  1 

nature,  and  he  stated,  in  answer  to  a  remonstrance  by  the  solicitor, 
that  he  meant  to  cancel  the  will  as  he  was  going  to  make  a  new  one. 
The  deceased  further  was  alleged  to  have  expressed  himself  to  the 
effect  that  he  understood  that  the  cutting  out  of  a  signature  from  an 
old  will  was  a  necessary  preliminary  to  making  a  new  will.  After  he 
had  thus  mutilated  the  will,  the  deceased  made  a  statement  to  the  ef- 
fect that  his  sole  reason  for  desiring  to  make  a  new  will  was  his  de- 
sire to  increase  a  certain  legacy.  The  instructions  then  given  to  the 
solicitor  covered,  not  merely  the  increase  of  that  legacy,  but  other 
alterations.  The  solicitor  used  the  mutilated  document  for  embody- 
ing the  deceased's  instructions,  and  on  the  following  day  went  through 
it  with  the  deceased,  who  desired  that  a  draft  will  should  be  pre- 
pared. This  was  accordingly  done,  but  the  deceased  died  without 
having  executed  it. 

The  instructions  given  by  the  deceased  to  the  solicitor  only  covered 
a  portion  of  the  estate  which  the  deceased  had  to  dispose  of. 

GoRELL  Barnes,  J.,  having  decided  to  leave  the  question  to  the  jury, 
summed  up  as  follows :  For  the  purposes  of  to-day  I  have  decided  to 
leave  the  question  of  fact  to  you.  The  plaintiff,  being  the  executor, 
propounds  this  will  of  1S9J:  and  proves  its  due  execution.  It  was  a 
perfectly  good  will  down  to  the  time  when  the  question  as  to  whether 
it  was  cancelled  or  not  arose.  It  arises  out  of  the  events  of  the  6th, 
7th,  and  8th  February,  and  upon  that  the  Crown  says  the  will  -was 
duly  revoked  by  virtue  of  the  20th  section  of  the  Wills  Act,  1837  (1 
Vict.  c.  26),  which,  so  far  as  it  applies  to  the  present  facts,  is  as  fol- 
lows: "*  *  *  No  will  or  codicil,  or  any  part  thereof,  shall  be  re- 
voked otherwise  than  *  *  *  by  the  burning,  tearing,  or  other- 
wise destroying  the  same  by  the  testator,  or  by  some  person  in  his 
presence  and  by  his  direction,  with  the  intention  of  revoking  the  same." 

The 'plaintiff,  on  the  other  hand,  says  that  the  destruction  was  not 
effected  with  the  intention  of  revoking  the  will,  but  with  the  inten- 
tion of  getting  rid  of  it  and  putting  another  will  in  its  place.  Look- 
ing at  the  will  and  at  the  instructions  given  on  February  7th  for  a 
fresh  will,  I  do  not  think  it  is  correct  to  say  that  the  testator's  sole 
object  was  to  deal  with  the  legacy  to  one  particular  lady.  It  is  ob- 
vious that  the  testator  intended  to  make  a  new  will,  and  did  not  intend 
that  the  Crown  should  take  his  property.  He  sent  for  his  solicitor 
to  take  his  instructions  for  a  new  will.  The  testator  there  and  then  cut 
out  his  own  signature  with  a  pair  of  scissors.  It  was  just  one  of  those 
stupid  acts  without  which  this  court  might  almost  cease  to  exist. 
There  is  no  doubt  that  the  testator  did  what  he  did  because  he  was 
making  a  new  will.  There  is  a  point  in  this  case  which  seems  to  dif- 
ferentiate it  from  those  reported  cases  in  which  the  judges  were  in 
doubt.  If  this  testator  cut  out  his  signature  because  he  thought  that 
he  had  to  cut  it  out  before  he  could  start  operations  on  the  fresh 
will,  then  he  was  doing  that  act  as  part  of  the  operation  of  bringing 
a  new  will  into  force;   and,  if  this  were  so,  it  follows  that  he  would 


Ch.  7)  THE  REVOCATION  OF   WILLS.  323 

not  have  cut  out  his  signature  if  he  had  thought  that  it  would  have 
the  effect  of  making  him  die  intestate.  The  questions  I  leave  to  you 
are: 

(1)  Whether  the  testator  cut  his  signature  off  the  will  with  the  in- 
tention of  revoking  the  will ;   or 

(2)  Whether  the  testator  cut  his  signature  off  the  will  with  the 
intention  that  the  will  should  be  revoked  conditionally  on  his  ex- 
ecuting a  fresh  will. 

The  jury  answered  the  first  question  in  the  negative,  and  the  sec- 
ond question  in  the  affirmative. 

Robertson  asked  for  judgment  for  the  Crown  on  that  finding.  The 
principle  as  to  destruction  of  a  testamentary  document  under  a  mis- 
taken impression  of  law  or  fact  has  never  yet  been  applied  in  a  case 
where  the  document  intended  to  be  substituted  was  nonexistent  and 
had  never  existed  as  a  valid  testamentary  document. 

GoRELL  Barnes,  J.  I  pronounce  for  the  will.  The  costs  must  of 
course  come  out  of  the  estate.  The  litigation  has  arisen  through  the 
testator's  own  fault.°' 


In  re  GOODS  OF  McCABE. 

(Court  of  Probate,  1873.     L.  R.  3  P.  &  D.  94.) 

Esther  Jeremy  McCabe,  late  of  Ticehurst,  Sussex,  spinster,  died 
on  the  3d  of  March,  1873,  having  made  a  will  dated  the  27th  of  Au- 
gust, 1863,  in  which  she  appointed  Robert  Jeremy  McCabe  sole  ex- 
ecutor. The  will  was  found  by  deceased's  sister,  Mrs.  Laming,  after 
the  death  of  Miss  McCabe,  in  a  davenport  in  Mrs.  Laming's  house,  the 
property  of  the  deceased.  It  was  in  an  envelope  which  had  been 
sealed,  but  the  seal  had  been  broken.     The  will  was  entirely  in  the 

5  8  See  Goods  of  Applebee,  1  Hagg.  Ecc.  143  (1828);  Mclntyre  v.  Mclntyre, 
120  Ga.  67,  47  S.  E.  501,  102  Am.  St.  Rep.  71  (1904).  But  see  Banks  v.  Banks, 
65  Mo.  432  (1877).  In  Mclntyre  v.  Mclntyre,  supra,  the  court  said:  "The  doc- 
trine as  we  understand  it,  and  are  willing  to  apply  it,  is  this:  The  mere  fact 
that  the  testator  intended  to  make  a  new  will,  or  made  one  which  failed  of 
effect,  will  not  alone,  in  every  case,  prevent  a  cancellation  or  obliteration  of  a 
will  from  operating  as  a  revocation.  If  it  is  clear  that  the  cancellation  and 
the  making  of  the  new  will  were  parts  of  one  scheme,  and  the  revocation  of 
the  old  will  was  so  related  to  the  making  of  the  new  as  to  be  dependent 
upon  it,  then  if  the  new  will  be  not  made,  or  if  made  is  invalid,  the  old  will, 
though  cancelled,  should  be  given  effect,  if  its  contents  can  be  ascertained  In 
any  legal  way.  But  if  the  old  will  is  once  revoked — if  the  act  of  revocation 
is  completed — as  if  the  will  be  totally  destroyed  by  burning  and  the  like  [with 
the  intent  to  revoke  it  at  all  events?]  or  If  any  other  act  is  done  which 
evidences  an  unmistakable  [and  unconditional?]  intention  to  revoke,  though 
the  will  be  not  totally  destroyed,  the  fact  that  the  testator  intended  to  make 
a  new  will,  or  made  one  which  cannot  take  effect,  counts  for  nothing.  In 
other  words,  evidence  that  the  testator  intended  to  make  or  did  actually 
make  a  new  will,  which  was  inoperative,  may  throw  light  on  the  question 
of  intention  to  revoke  the  old  one,  but  it  can  never  revive  a  will  once  com- 
pletely revoked."     120  Ga.  70,  71,  47  S.  E.  503,  102  Am.  St.  Rep.  71. 


324  LAST   WILLS   AND   TESTAMENTS.  (Part  1 

handwriting  of  the  deceased,  and  contained  the  following  clauses ; 
"After  payment  of  all  the  above  legacies,  I  will  and  bequeath  to  my 
sister  Caroline  Jeremy  Luro  half  of  the  sum  of  money  remaining  un- 
disposed of,  and  to  my  sister  Louisa  Galsworthy  the  remaining  half 
of  the  same  sum.  *  *  *  To  my  sister  Louisa  Jeremy  Galsworthy 
I  leave,  as  a  remembrance,  the  print  hanging  at  present  in  my  bed- 
room. And  the  whole  of  the  remainder  of  my  personal  effects  and 
property  of  whatsoever  nature,  excepting  any  sum  of  money  which 
may  remain  after  payment  of  all  the  above-mentioned  legacies,  I  leave 
to  my  nieces  and  nepheivs."  The  words  in  italics  were  written  on 
erasures,  but  the  attesting  witnesses  could  give  no  information  or  ex- 
planation whatever  in  reference  to  them. 

Messrs.  Chabot  and  Netherclift  were  of  opinion  that  the  words 
written  under  sister  Louisa,  in  the  first  paragraph,  were  niece  Edith. 
Mr.  Galsworthy,  in  his  affidavit,  stated  that  at  the  date  of  the  will, 
the  27th  of  August,  1863,  his  wife  Louisa  Galsworthy  was  seriously 
ill,  a  fact  well  known  to  the  testatrix,  and  it  was  not  expected  either 
by  her  husband,  by  the  testatrix,  or  any  other  member  of  the  family, 
that  she  would  recover;  and  that  he  had  no  doubt  that  by  reason 
thereof  the  testatrix  believed  that  any  bequest  of  a  share  of  her  prop- 
erty to  her  sister  would  be  inoperative,  and  she  determined  to  give 
such  share  to  Louisa  Galsworthy's  only  child  Edith,  to  whom  testatrix 
was  much  attached.  At  the  end  of  the  year  1864  Louisa  Galsworthy 
completely  recovered  from  her  illness,  and  the  fact  of  such  recovery 
was  known  to  the  testatrix,  who  visited  her  sister  in  1865.  In  con- 
sequence of  the  recovery  of  her  sister,  the  testatrix  probably  erased, 
or  attempted  to  erase,  the  words  niece  Edith  from  the  will,  in  order 
to  substitute  in  the  place  thereof  the  name  of  her  sister,  and  in  con- 
sequence of  the  space  being  insufficient  for  the  full  name,  left  out  the 
word  Jeremy,  which  in  other  cases  she  had  always  used.  Louisa  Gals- 
worthy died  in  October,  1866,  and  from  that  time  the  testatrix  was 
incompetent  to  manage  her  affairs,  or  make  a  new  will. 

Dr.  Tristram,  for  the  executor,  applied  for  probate. 

Sir  J.  Hannen.  By  the  will  of  the  testatrix,  as  found  at  her  death, 
half  the  residue  of  her  money  was  left  to  her  sister  Louisa  Galsworthy ; 
the  words  sister  Louisa  were  written  on  an  erasure,  and  as  the  at- 
testing witnesses  could  give  no  explanation  of  the  alteration,  these 
words  must  be  rejected.  But  it  is  alleged  that  the  words  erased  were 
niece  Edith.  It  is  stated  by  Messrs.  Chabot  and  -Netherclift  that  they 
can,  with  the  assistance  of  a  magnifying-glass,  read  these  words  be- 
neath those  which  are  substituted.  I  have  myself  carefully  examined 
the  will  with  the  aid  of  a  powerful  glass,  and  I  am  unable  to  dis- 
cover what  these  gentlemen  say  they  see.  If  this  were  a  case  of 
simple  obliteration,  I  should  not  be  able  to  act  upon  the  evidence  of 
these  experts,  for  the  Statute  of  Wills  gives  no  effect  to  obliterations, 
except  so  far  as  the  original  words  shall  not  be  apparent.  And  this 
has  been  decided  to  mean,  "apparent  on  an  inspection  of  the  instru- 


Ch.  7)  THE   REVOCATION   OF   WILLS.  825 

ment,"  not  "apparent  by  extrinsic  evidence":  Townley  v.  Watson,  3 
Curt.  761. 

But  as  this  is  a  case  not  merely  of  obliteration,  but  of  substitution, 
I  am  at  liberty  to  inquire  whether  the  testatrix  did  not  intend  only 
to  revoke  the  original  bequest,  on  the  supposition  that  she  had  effectu- 
ally substituted  another.  This  is  established  by  the  cases  of  Brooke  v. 
Kent,  3  Moo.  P.  C.  33-1 ;  In  the  Goods  of  Harris,  1  Sw.  &  Tr.  536 ; 
In  the  Goods  of  Parr,  29  L.  J.  (P.  M.  &  A.)  70;  6  Jur.  (N.  S.)  56. 
In  the  last-named  case  Sir  C.  Cresswell  expressed  a  doubt  whether 
the  doctrine  of  dependent  relative  revocation  could  be  applied  to  cases 
where  not  merely  an  appointment  of  a  fresh  executor  was  attempted, 
but  a  new  legatee  was  substituted ;  but  the  judgment  of  Sir  W.  Grant, 
in  the  case  Ex  parte  Earl  of  Ilchester,  7  Ves.  372,  shows  that  the 
doctrine  is  equally  applicable  where  the  later  invalid  will  or  bequest 
is  in  favor  of  a  different  person  to  the  one  named  in  the  earlier.  The 
designation  of  a  fresh  legatee  is,  no  doubt,  an  important  circumstance 
to  be  considered  in  determining  the  question  of  fact,  whether  the  de- 
struction or  obliteration  was  intended  to  be  dependent  on  the  efficacy 
of  the  substituted  disposition ;  but  where  that  is  clear,  the  nature  or 
extent  of  the  contemplated  alterations  are  immaterial.  This  is  well 
illustrated  by  the  circumstances  of  the  present  case.  If  the  words 
written  on  the  first  erasure  be  rejected,  the  bequest  in  the  will  will  run 

thus:    "To  my  Galszvorthy"     This  makes  it  clear  that  the 

bequest  was  to  some  connection  of  the  deceased  of  the  name  of  Gals- 
worthy. Her  only  relatives  of  that  name  were  her  sister,  her  sister's 
husband,  and  her  sister's  daughter. 

The  facts  stated  in  the  affidavit  of  Mr.  Galsworthy  make  it  in  the 
highest  degree  probable  that  the  bequest  was  not  originally  made  to 
the  deceased's  sister,  because  she  was  then  dangerously  ill  and  expected 
to  die.  In  this  state  of  things,  it  was  natural  that  the  bequest  should 
be  made  to  one  of  her  family,  as  it  is  clear  it  was,  but  it  cannot  be 
supposed  that  the  testatrix  intended  to  revoke  a  bequest  made  under 
such  circumstances  absolutely,  and  without  reference  to  her  desire  to 
substitute  the  name  of  her  sister,  who  had  been  restored  to  health.  I 
cannot  have  a  doubt  that  she  would  not  have  obliterated  the  name  of 
that  member  of  her  family  of  the  name  of  Galsworthy,  which  orig- 
inally stood  in  the  will,  if  she  had  not  believed  that  she  could  validly, 
substitute  the  name  of  her  sister ;  and  if  this  be  so,  the  doctrine  of 
dependent  relative  revocation  is  applicable,  and  I  am  at  liberty  to  have 
recourse  to  any  means  of  legal  proof  to  establish  what  the  obliterated 
words  were. 

In  this  inquiry  I  accept  the  evidence  of  the  experts  to  this  extent, 
namely,  that  that  which  is  visible  of  the  remains  of  the  letters  which 
are  obliterated  is  consistent  with  the  theory  that  the  words  were  niece 
Edith,  and  inconsistent  with  the  theory  that  they  were  hrother-in-lmv, 
or  any  other  words  which  can  be  reasonably  suggested  to  fill  up  the 
blank  between  my  and  Galszvorthy ;    and  taking  this  in  combination 


S26  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

with  the  other  evidence  as  a  whole,  I  come  to  the  conclusion  that  the 
words  obliterated  were  "niece  Edith,"  and  I  direct  probate  with  those 
words  restored.  The  other  words  written  on  erasures,  not  being  ac- 
counted for,  must  be  rejected. 


In  re  GOODS  OF  HORSFORD. 
(Court  of  Probate,  1874.     L.  R.  3  P.  &  D.  211.) 

Georg-e  Fahie  Horsford,  late  a  captain  in  Her  Majesty's  service,  un- 
attached, on  the  1st  of  April,  1868,  executed  a  will  which  was  writ- 
ten on  two  sheets  of  foolscap  paper.  The  writing  covered  five  sides 
of  the  paper,  terminating  at  the  bottom  of  the  fifth  side,  with  a  full 
attestation  clause  where  the  witnesses  signed  their  names.  At  the  top 
on  the  sixth  side  were  the  words,  "To  which  will  and  testament  I  here- 
unto annex  my  seal  and  signature,  dated  this  1st  day  of  April,  in  the 
year  of  our  Lord  1868.  Geo.  F,  Horsford,  Captain  Unattached." 
Pieces  of  paper  were  pasted  over  certain  parts  of  the  will  with  writing 
on  them,  as  appears  in  the  paragraphs  following  in  italics: 

"I  leave  the  interest  on  £309.  9s.  6d.  bank  stock  to  my  god-child, 
Rosina  Horsford  Wood;  and  in  case  of  her  death  unmarried,  or,  if 
married,  childless,  then  to  my  brother.  Sir  Robert  Marsh  Horsford, 
Knt.,  C.  B.,  for  his  lifetime,  and  afterwards  the  interest  to  my  cousin 
Amelia  Thorpe,  widow  of  Colonel  Thorpe,  formerly  of  the  89th  Regi- 
ment; and  after  her  death  the  principal  of  the  said  bank  stock  to 
Mary  Flinch,  the  eldest  daughter  of  John  FUnch  of  Greenwich,  Bs- 
qiiire,  deceased.  I  also  leave  and  bequeath  to  my  adopted  god-child, 
Rosina  Horsford  Wood,  for  her  sole  use  during  her  lifetime,  the  in- 
terest of  the  sum  of  £174.  2s.  3d.  reduced  3  per  cent,  annuities,  and, 
if  she  marry  and  have  children,  the  principal  to  them  after  her  de- 
cease. In  case  she  should  die  single,  or,  if  married,  childless,  the  in- 
terest of  the  said  amount  will  revert  to  my  brother.  Sir  Robert  Marsh 
Horsford,  Knt.,  C.  B.,  and  then  to  my  cousin,  Amelia  Thorpe,  &c., 
and  after  her  death  the  principal  to  Mary  Graham,  daughter  of  the 
Rev.  Leonard  Graham,  who  married  Lainnia  Horsford." 

Sir  Robert  Marsh  Horsford  was  appointed  executor.  On  the  29th 
of  July,  1874,  the  deceased  executed  a  codicil  to  his  will  in  the  fol- 
lowing manner.  It  was  written  on  a  sheet  of  foolscap  paper,  the  writ- 
ing covering  the  first  and  half  the  second  sides  of  the  sheet.  Attached 
by  a  string,  passing  through  the  fold  of  the  sheet  about  opposite  to 
the  termination  of  the  writing,  was  a  separate  paper  on  which  was 
written,  "To  which  codicil  I  hereunto  annex  my  seal  and  signature, 
dated  this  29th  day  of  July,  1874."  This  was  followed  by  the  sig- 
natures of  the  deceased  and  of  the  witnesses.  Captain  Hedley  and 
Mrs.  Bourne. 

The  contents  of  the  codicil,  so  far  as  material,  were  as  follows: 
"Febry.,  1870.    Codicil  to  the  will  of  Captain  George  Fahie  Horsford. 


Ch.  7)  THE  REVOCATION   OP   WILLS.  327 

Should  anything  occur  to  prevent  from  death  my  will  acting  in  any 
way  I  have  stated,  I  leave  and  bequeath  to  Mrs.  George  Davies,  for- 
merly Rosina  Horsford  Wood,  82  Blake  Street,  Barrow-on-Furness, 
Lancashire,  should  she  survive  any  children  she  may  have,  or  in  the 
event  of  her  not  having  any,  the  whole  of  the  money  invested  in  my 
name  in  the  different  funds  of  the  Bank  of  England,  together  with 
my  bank  stock,  for  her  sole  use.  I  leave  and  bequeath  ten  pounds, 
which  will  be  found  with  my  photograph,  to  Emily  Bush,  the  young- 
est daughter  of  Lieut.  Colonel  J.  T.  Bush,  late  of  the  Honble.  E.  L 
Service,  Bengal  Army,  as  a  remembrance  for  kindly  coming  to  see 
me  when  she  was  a  little  girl !"  The  words  in  italics  were  written  on 
pieces  of  paper  pasted  over  the  original  writing  of  the  codicil.    *    *    * 

Nugent  applied  to  the  court  to  grant  probate  of  the  will  and  codicil. 

Sir  J.  Hannen.***  *  *  *  a  further  question  arose  as  to  certain 
obliterations  which  appear  upon  the  will  and  codicil,  and  of  which  the 
attesting  witnesses  were  unable  to  give  any  account.  Strips  of  paper 
have  been  pasted  over  portions  of  the  original  will  and  codicil,  and  on 
some  of  these  strips,  words  have  been  written  by  the  testator,  by  which 
he  has  sought  to  make  bequests  to  several  legatees.  It  is  clear  that 
the  words  so  written  on  the  strips  of  paper  must  follow  the  fate  of 
ordinary  alterations,  and  in  the  absence  of  evidence  showing  when 
they  were  made,  it  must  be  presumed  that  they  were  so  added  after 
the  execution  of  the  will  and  codicil.  But  ought  I  to  treat  the  words 
over  which  the  pieces  of  paper  are  pasted  as  effectually  obliterated, 
and  grant  probate  of  the  will  or  codicil  with  the  hidden  passages  in 
blank,  or  ought  I  to  endeavor  to  ascertain  what  words  have  been  cov- 
ered up,  and  include  them  in  the  probate? 

As  to  the  will,  the  answer  to  these  questions  depends  upon  the  con- 
struction to  be  put  on  the  twenty-first  section  of  the  statute  1  Vict. 
c.  26,  by  which  it  is  enacted  that  no  obliteration,  interlineation,  or  other 
alteration  made  in  any  will  after  the  execution  thereof,  shall  be  valid 
or  have  any  effect,  except  so  far  as  the  words  or  effect  of  the  will  be- 
fore such  alteration  shall  not  be  apparent,  unless  such  alteration  shall 
be  executed  in  like  manner  as  hereinbefore  is  required  for  the  execu- 
tion of  the  will.  Soon  after  the  passing  of  the  act.  Sir  H.  J.  Fust,  in 
Townley  v.  Watson,  3  Curt.  761,  decided  that  the  construction  to  be 
put  upon  the  words  of  the  twenty-first  section  was  that  the  effect  of 
the  will  before  the  alterations  must  be  apparent  on  the  face  of  the  in- 
strument itself.  He  said:  "What  is  an  obliteration?  Is  it  not  by 
some  means  covering  over  words  originally  written,  so  as  to  render 
them  no  longer  legible?  I  cannot  understand,  if  the  Legislature  really 
intended  that  extrinsic  evidence  should  be  admitted,  why  a  few  more 
words  were  not  added,  which  would  have  freed  the  section  from  all 
doubt ;  for  instance,  why  was  it  not  thus  penned :  'unless  the  words 
shall  be  capable  of  being  made  apparent'?"     I  think  it  is  impossible 

•  »  The  statement  of  facts  is  abbreviated,  and  part  of  the  opinion  is  omitted. 


328  LAST   WILLS   AND   TESTAMENTS.  (Part  1 

to  read  the  words  of  the  statute,  and  not  say  that  it  was  the  inten- 
tion of  the  Legislature  that,  if  a  testator  shall  take  such  pains  to  ob- 
literate certain  passages  in  his  will,  and  shall  so  effectually  accomplish 
his  purpose  that  those  passages  cannot  be  made  out  on  the  face  of 
the  instrument  itself,  it  shall  be  a  revocation  as  good  and  valid  as  if 
done  according  to  the  stricter  forms  mentioned  in  the  act  of  Parlia- 
ment. 

Mr.  Justice  Williams  (Executors,  page  139,  6th  Ed.,  in  a  note) 
says:  "In  a  case  before  Sir  H.  J.  Fust,  he  ordered  that  the  erasures 
in  a  will  should  be  carefully  examined  in  the  registry  with  the  help  of 
glasses,  by  persons  accustomed  to  writing,  to  ascertain  whether  the 
words  could  be  made  out,  and  directed  that  probate  should  pass  with 
the  erased  passages  restored,  unless  they  could  not  be  made  out,  and 
then  with  those  parts  in  blank.  Generally  speaking  the  Ecclesiastical 
Court  will  not  in  the  first  instance  take  upon  itself  to  decide  whether 
the  words  obliterated  can  or  cannot  be  made  out.  It  must  be  proved." 
But  it  has  not  been  the  practice  to  adopt  any  means  of  ascertaining 
what  the  words  attempted  to  be  obliterated  were,  other  than  mere  in- 
spection by  aid  of  glasses.  Chemical  agents  have  not  been  resorted  to 
in  order  to  remove  any  portion  of  the  obscuring  ink,  and  I  do  not  think 
it  would  be  proper  to  adopt  such  means.  I  think  that  the  word  "ap- 
parent" in  the  twenty-first  section  means  apparent  on  the  face  of  the. 
instrument  in  the  condition  in  which  it  was  left  by  the  testator,  and 
that  if  he  has  had  recourse  to  extraordinary  means  to  obliterate  what 
he  had  written,  then  this  court  is  not  bound  to  take  any  steps  to  undo 
what  he  had  done. 

The  statute  does  not  draw  any  distinction  between  different  modes 
of  obliteration.  The  effacement  of  the  original  writing  as  performed 
by  this  testator,  by  pasting  paper  over  it,  is  complete,  and  I  can  see 
no  reason  why  the  court  should  remove  the  pasted  paper  used  as 
the  instrument  of  obliteration,  rather  than  ink  used  for  the  same  pur- 
pose. I  shall  therefore  give  no  directions  on  the  subject  so  far  as 
the  will  is  concerned ;  and,  assuming  that  the  words  covered  over  can- 
not be  ascertained  by  inspection  the  probate  must  go  with  those  parts 
in  blank. 

But  with  regard  to  the  obliterations  in  the  codicil,  the  case  is 
different.  There  the  amount  of  a  legacy  has  been  obliterated,  leav- 
ing the  name  of  the  legatee  untouched.  As  to  this,  I  am  in  a  position 
to  infer  that  the  testator's  intention  was  only  to  revoke  that  portion 
of  the  codicil  which  was  covered  in  the  event  of  his  having  effectually 
substituted  another  bequest  in  its  place,  and  thus  the  doctrine  of  de- 
pendent relative  revocation  becomes  applicable.  As  to  these  altera- 
tions, the  court  is  at  liberty  to  have  recourse  to  any  means  of  legal 
proof  by  which  to  ascertain  the  original  disposition,  and  amongst  such 
means,  the  removal  of  the  strips  of  paper  is  the  most  obvious,  I 
therefore  direct  that  the  strip  on  which  is  written  the  word  ten,  as 
well  as  the  strip  on  which  are  written  the  words  which  will  be  found 


Ch.  7)  /THE   REVOCATION   OP-  WILLS.  329 

with  (to  which  the  same  remarks  are  applicable)  be  removed  in  the 
registry  from  the  codicil,  and  that  probate  be  granted  of  that  instru- 
ment in  its  unaltered  condition.'* 


LOCKE  V.  JAMES. 

(Court  of  Exchequer.  184a    11  M.  A  W.  901.) 

Parke,  B.'^     The  material  facts  in  this  case  were  as  follows: 

Ralph  Nicholson,  by  his  will,  duly  signed  and  published  in  the  pres- 
ence of  and  attested  by  three  witnesses,  devised  certain  real  estates 
in  Essex  to  his  son  Ralph  Nicholson  in  fee,  charged  with  the  payment 
of  an  annuity  of  six  hundred  pounds  to  his  daughter  Elizabeth  James, 
the  defendant,  for  her  life,  with  the  usual  powers  of  distress  and  en- 
try ;  and  after  various  other  devises  and  bequests,  he  gave  all  the  res- 
idue of  his  estate,  after  payment  of  his  debts,  and  the  legacies  and  an- 
nuities thereinbefore  bequeathed,  and  the  duty  payable  thereon,  to  his 
said  son,  his  heirs,  executors,  and  administrators.  On  the  15th  of 
August,  1830,  the  testator  with  his  pen  erased  the  word  "six,"  in  the 
gift  of  the  annuity,  and  wrote  over  it  the  word  "two,"  leaving,  how- 
ever, the  word  "six"  still  legible;  and  on  the  same  day,  he  signed  a 
codicil  in  the  presence  of  and  attested  by  one  witness  only,  mentioning 
that  he  had  on  that  day  made  the  above-mentioned  alteration. 

The  testator  died  in  December,  1831,  and  his  will  and  codicil,  with 
other  codicils  not  material  to  be  now  considered,  were  duly  proved 
soon  after  his  decease,  and  the  executors  possessed  themselves  of  his 
personal  estate,  which  was  more  than  sufficient  to  satisfy  his  debts  and 
legacies,  including  the  annuities. 

The  plaintiffs  are  the  parties  entitled  to  the  real  estate  under  Ralph 
Nicholson,  the  devisee,  and  they  have  brought  the  present  action, 
which  is  an  action  of  trespass  for  seizing  their  goods  under  a  distress. 
The  question  is,  whether  the  defendant  is  entitled  under  the  will  and 
codicil  to  an  annuity  of  £600  per  annum,  or  to  an  annuity  of  i200  per 
annum  only.  If  she  is  entitled  to  £600  per  annum,  then  it  is  admit- 
ted that  the  distress  was  lawful,  and  that  this  action  cannot  be  main- 
tained. 

It  was  not,  and  indeed  could  not  have  been,  disputed,  but  that  if  the 
annuity  had  been  charged  on  the  real  estate  only,  then  neither  the 
erasure  nor  the  codicil  would  have  affected  it.  The  erasure  would 
have  had  no  effect,  because  the  testator  did  not  mean  to  destroy  the 

«"  Twenty  years  later,  in  Ffinch  v.  Combe,  [1894]  P.  191,  It  proved  possible 
to  decipher  certain  of  the  words  under  the  pasted  slips  on  this  will  by  plac- 
ing a  piece  of  brown  paper  around  the  slips  and  holding  the  document  against 
a  window  pane,  and  the  words  thus  read  were  accordingly  included  in  the 
probate. 

81  The  statement  of  facts  is  omitted. 


330  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

annuity  of  £600  per  annum  in  any  other  way  than  by  substituting  for 
it  an  annuity  of  £200  per  annum.  The  substitution  in  the  will  was 
inoperative,  having  been  made  after  the  subscription  of  the  witnesses, 
not  in  their  presence,  and  without  republication;  and  the  substitu- 
tion, for  the  purpose  of  giving  effect  to  which  the  erasure  was  made, 
thus  failing,  the  law  is  clear  that  the  erasure  fails  also.  It  is  treated 
as  an  act  done  by  mere  mistake,  sine  animo  cancellandi.  What  the 
testator  in  such  a  case  is  considered  to  have  intended,  is  a  complex 
act,  to  undo  a  previous  gift,  for  the  purpose  of  making  another  gift 
in  its  place.  If  the  latter  branch  of  his  intention  cannot  be  effected, 
the  doctrine  is,  that  there  is  no  sufficient  reason  to  be  satisfied  that  he 
meant  to  vary  the  former  gift  at  all.  The  codicil  or  memorandum, 
being  unattested,  clearly  could  have  no  effect  on  the  disposition  of  the 
real  estate. 

But  on  the  part  of  the  plaintiffs,  it  is  argued,  that,  taking  such  to  be 
the  law  where  the  gift  relates  to  real  estate  only,  yet  here  the  case  is 
different,  for  that,  looking  to  the  whole  will,  the  personal  estate  would 
be  the  primary  fund  for  payment  of  the  annuity,  the  real  estate  be- 
ing liable  only  in  case  the  personal  estate  should  be  deficient.  And 
then  it  was  said,  the  erasure  and  codicil  together  would  certainly  have 
the  effect  of  reducing  the  annuity,  so  far  as  it  was  payable  out  of  the 
personal  estate,  and  so,  by  necessary  consequence,  must  affect  the  real 
estate,  which  is  merely  charged  by  way  of  security,  in  case  the  per- 
sonal estate  should  be  insufficient.  And  in  support  of  this  proposition 
the  plaintiffs  relied  mainly  on  the  case  of  Brudenell  v.  Boughton  [2 
Atk.  268],  before  Lord  Hardwicke.  The  defendant's  counsel,  on  the 
other  hand,  contended  that,  even  supposing  Brudenell  v.  Boughton  to 
have  been  well  decided,  yet  it  did  not  apply  to  a  case  like  the  present, 
but  only  to  the  case  of  a  general  charge  of  legacies ;  and  he  referred 
to  The  Attorney  General  v.  Ward  [3  Ves.  Jr.  327],  Kirke  v.  Kirke  [4 
Russ.  435],  Beckett  v.  Harden  [4  M.  &  S.  1],  and  other  cases. 

We  do  not  think  that,  in  .order  to  decide  this  case,  we  are  bound 
to  discuss,  or  indeed  that  we  should  be  warranted  in  discussing,  the 
question  as  to  what  effect  a  court  of  equity  might  give  to  the  acts  of 
this  testator.  The  question  for  our  decision  is  a  mere  legal  question. 
The  testator  by  his  will  gave  to  the  defendant  a  legal  interest  in  his 
lands  (for  an  annuity  charged  on  land,  with  a  power  of  distress,  is 
clearly  a  legal  interest),  and  what  we  have  to  decide  is,  whether  that 
legal  interest  has  since  been  altered.  We  are  clearly  of  opinion  that 
it  has  not.  It  is  clear,  that  if  the  annuitant  had  nothing  but  the  land 
to  resort  to,  her  interest  would  have  remained  unaltered,  for  the  rea- 
sons already  mentioned,  and  the  circumstance  that  she  may,  through 
the  medium  of  a  court  of  equity,  have  another  fund  liable  to  her  de- 
mand, cannot  possibly  affect  our  judgment.  A  court  of  law  cannot 
look  to  anything  but  the  legal  rights  of  the  parties;  if,  by  means  of 
the  erasure  and  codicil,  that  which  was  originally  a  right  to  or  a  se- 
curity for  £600  per  annum,  has  now  become  a  security  for  £200  per 


Ch.  7)  THE  REVOCATION   OF  WILLS.  331 

annum  only,  the  parties  injured  by  the  attempt  to  enforce  the  larger 
demand  must  have  recourse  to  a  court  of  equity  for  relief.  The  legal 
interest  remains  as  it  was  originally. 

That  legal  interest  is  a  rent-charge  of  £600  per  annum,  created  by 
a  will  duly  executed  and  attested.  The  gift  of  this  legal  interest  has 
not  been  cancelled,  for  the  erasure  was  made  sine  animo  cancellandi. 
It  has  not  been  affected  by  the  codicil,  for  the  codicil  is  not  duly  at- 
tested, and  therefore  cannot  even  be  looked  at,  so  far  as  the  real  es 
tate  is  concerned.  On  this  short  ground  there  must  be  judgment  fo 
the  defendant.®^ 


In  re  KNAPEN'S  WILL. 

(Supreme  Court  of  Vermont,  1903.     75  Vt.  146,  53  Atl.  1003,  98  Am.  St.  R 

808.) 

Stafford,  J.  The  testatrix  made  and  executed  her  will  in  due  form 
of  law,  and  the  same  is  still  decipherable.  But  afterwards  she  at- 
tempted to  make  various  changes  therein  without  complying  or  at- 
tempting to  comply  with  the  requirements  of  the  statute;  and  the 
question  is  threefold — whether  the  will  is  to  be  established  as  it  was 
when  it  was  executed,  disregarding  the  attempted  changes ;  or  to  be 
disallowed  as  having  been  wholly  revoked  thereby;  or  to  be  estab- 
lished as  originally  executed,  except  as  to  certain  clauses,  and  as  to 
those  to  be  treated  as  revoked  by  cancellation. 

The  will,  as  executed,  made  some  special  bequests,  and  several 
money  bequests,  and  then  added  a  residuary  clause  in  favor  of  the 
testatrix's  two  sisters,  Susan  Tupper  and  Margaret  Vaux.  In  this 
clause  a  pen  and  ink  line  has  been  drawn  through  the  name  "Mar- 
garet Vaux."  In  the  margin  opposite  has  been  written  in  ink  the  word 
"deceased";  and  at  the  end  of  the  clause  have  been  added,  also  in 
ink,  the  words,  "Share  with  Mrs.  Ada  Stabb."  The  original  will  was 
typewritten,  and  all  the  attempted  changes  made  with  a  pen  are,-  it  is 
agreed,  in  the  handwriting  of  the  testatrix. 

In  one  of  the  early  clauses  there  was  a  bequest  to  the  same  Margaret 
Vaux  of  five  hundred  dollars.  Here  the  name  "Margaret"  has  been 
drawn  through  with  a  hne  in  ink,  and  the  word  "deceased"  written 
in  the  margin  opposite ;  and  to  the  clause  have  been  added  the  words, 
"to  be  given  to  Mrs.  Ada  Vaux  Stabb." 

The  next  clause  originally  read  as  follows :  "I  give  and  bequeath  to 

62  See  Brooke  v.  Kent,  3  Moo.  P.  C.  334  (1840) ;  Goods  of  Nelson,  N.  R. 
6  Eq.  509  (1882).  In  Gardner  v.  Gardiner,  65  N.  H.  230,  19  Atl.  651,  8  L.  R. 
A  383  (18S9)  the  testatrix  attempted  by  an  unattested  alteration  to  increase  a 
eift  of  one  undivided  fourteenth  of  her  estate  to  that  of  one  undivided  twelfth 
and  the  will  as  originally  executed  was  established.  In  In  re  Wilcox  s  ^\  ill 
(Sur)  20  N  Y.  Supp.  131  (1892),  legacies  of  $7,000  were  changed  to  $11.00a 
without  attestation  by  the  erasure  of  the  letter  "s"  in  "seven"  and  the  sub- 
stitution therefor  of  the  letters  "el,"  and  the  will  as  originally  executed  wa& 
established. 


332  LAST   WILLS  AND  TESTAMENTS.  (Part  1 

the  two  daughters  of  my  said  sister  Margaret  Vaux,  Bessie  and  Ada, 
each,  the  sum  of  three  hundred  dollars.  I  also  give  to  the  said  Bessie 
and  Ada,  each,  one  half  dozen  silver  teaspoons.  I  also  give  to  the 
said  Ada  Vaux  my  gold  watch."  The  changes  made  are  these:  The 
name  "Bessie"  has  been  drawn  through  with  an  ink  line  where  it  first 
occurs  and  marked  over  with  a  pencil  in  the  other  place.  The  word 
"watch"  has  been  marked  over  with  a  pencil.  To  the  clause  have  been 
added  in  ink  the  words,  "To  be  given  to  Mrs.  Ada  Vaux  Stabb;"  and 
these  words  have  been  marked  over  with  a  pencil. 

In  the  next  clause  but  one,  a  bequest  of  two  hundred  dollars  has 
been  changed  by  writing  in  ink  the  word  "four"  over  the  word  "two," 
and  by  writing  in  the  margin  the  word  "four"  and  the  figures  "400." 
In  the  next  clause  the  name  of  the  legatee  and  the  words  designating 
the  amount  have  been  drawn  through  with  an  ink  line.  Other  similar 
changes  have  been'  made.  New  bequests  have  been  written  in  the 
margins,  and  one  of  these  has  been  marked  over  with  a  pencil. 

First,  then,  do  the  attempted  changes  constitute  a  revocation  of  the 
will?  V.  S.  2354,  following  the  English  Statute  of  Frauds,  declares: 
"No  will  shall  be  revoked,  except  by  implication  of  law,  otherwise 
than  by  some  will,  codicil,  or  other  writing,  executed  as  provided  in 
case  of  wills;  or  by  burning,  tearing,  cancelling  or  obliterating  the 
same,  with  the  intention  of  revoking  it,  by  the  testator  himself,  or  by 
some  other  person  in  his  presence  and  by  his  express  direction."  Do 
the  alterations  amount  to  a  revocation  of  the  will  by  cancellation? 

The  agreed  statement  of  facts  does  not  say  that  the  alterations  were 
made  with  the  intention  of  revoking  the  will,  and.  judging  from  the 
alterations  themselves,  there  was  no  intention  to  revoke  the  will  as  a 
whole,  but,  on  the  contrary,  an  intention  to  have  it  stand  with  certain 
changes.  There  is  no  interference  with  the  fonnal  parts,  and  no  in- 
tention to  revoke  the  whole  is  anywhere  expressed.  In  these  impor- 
tant respects  the  case  differs  from  Warner  v.  Warner's  Estate,  37  Vt. 
356,  367,  where  the  testator  had  written  across  one  page  of  the  in- 
strument, "This  will  is  hereby  cancelled  and  annulled."  and  under  the 
filing  on  the  outside,  "Cancelled  and  is  null  and  void.  I.  Warner," 
and  had  erased  the  words,  "In  testimony  whereof  I  have."  We  think 
the  attempted  changes  in  the  present  case  cannot  be  said,  as  matter  of 
law,  to  amount  to  a  revocation  of  the  whole  will  by  cancellation,  for 
although  they  would,  if  effectual,  make  of  it  a  very  different  instru- 
ment, yet  it  cannot  be  said  therefrom  that  the  testatrix  would  not  have 
left  the  instrument  as  it  was  in  the  first  place,  rather  than  have  died 
intestate.** 

«•  In  Dammann  ▼.  Dammann  (Md.)  28  Atl.  408  (1894),  a  will  was  so  marked 
lip  by  .erasures,  interlineations,  and  marginal  notes  that,  altliongli  some 
items  were  not  specifically  erased,  the  court  was  convinced,  and  held,  that 
the  testator  intended  to  revoke  the  entire  will  by  cancellation  at  all  events, 
ftud  to  make  a  new  one  later.  See,  also,  Muh's  Succession,  35  La.  Ann.  394, 
48  Am.   Rep.    242   (1883). 


Ch.  7)  THB   REVOCATION   OF   WILLS.  333 

The  interlineations  of  new  and  independent  bequests  are,  of  course, 
ineffectual.  Neither  do  they  invalidate  the  will,  which  was  properly 
executed  in  its  original  form.  Wheeler  v.  Bent,  7  Pick.  (Mass.)  61; 
Jackson  v.  Holloway,  7  Johns.  (N.  Y.)  394. 

Do  any  of  the  attempted  cancellations  of  separate  clauses  constitute 
a  revocation  .of  the  will  to  that  extent?  If  we  admit  that  in  some 
circumstances  there  may  be  a  partial  revocation,  we  have  to  take  note 
of  certain  complications  in  the  present  case.  This  will  contains  a 
residuary  clause,  and  every  cancellation  of  a  money  legacy,  and  prob- 
ably, as  this  will  is  written,  every  cancellation  of  a  specific  legacy  as 
well,  works  a  corresponding  increase  in  the  residuary  clause.  Bige- 
low  v.  Gillott,  123  Mass.  102,  25  Am.  Rep.  32.  If  there  had  been  no 
residuary  clause,  the  cancellation  of  a  legacy  would  merely  have  left 
that  part  of  the  estate  to  be  distributed  as  if  no  will  had  been  made, 
and  the  rest  of  the  will  would  operate  as  before ;  but  here  the  cancel- 
lation gives  the  residuary  clause  a  different  operation.  This  has  been 
held  to  prevent  the  attempted  cancellation  from  operating  as  a  partial 
revocation.     Miles'  Appeal,  68  Conn.  237,  36  Atl.  39,  36  L.  R.  A.  176. 

But  if  we  should  hold  otherwise  upon  this  point,  as  was  done  in 
Bigelow  V.  Gillott,  123  Mass.  102,  25  Am.  Rep.  32,  we  must  notice  a 
further  difficulty.  The  testatrix  has  attempted  to  substitute  a  new 
residuary  legatee  in  place  of  her  deceased  sister,  Alargaret;  thus 
coupling  the  cancellation  of  previous  bequests,  and  the  consequent  en- 
largement of  the  residuary  bequest,  with  the  substitution  ,  of  a  new 
residuary  legatee ;  so  that  it  is  impossible  to  say  that  she  would  have 
desired  to  make  any  of  the  cancellations  if  she  had  not  supposed  that 
the  new  residuary  legatee  would  receive  the  benefit  arising  therefrom. 
In  short,  the  alterations,  when  taken  together,  rebut  the  presumption 
of  an  intention  to  cancel  any  clause  by  itself  and  independently  of 
other  attempted  changes  and  additions  which  are  ineffectual  for  want 
of  formality. 

An  act  which  might  otherwise  amount  to  a  cancellation  of  an  entire 
will  has  been  held  not  to  work  that  result  because  accompanied  by 
other  acts  showing  that  the  intention  to  cancel  was  conditional,  and 
not  absolute,  as  where  the  testator  wrote  upon  the  will  the  word  "Can- 
celled," but  further  wrote  that  he  intended  making  another  will, 
"whereupon  I  shall  destroy  this."  In  re  Brewster,  6  Jur.  (N.  S.)  56, 
29  L.  J.  P.  &  D.  69 ;  Woerner's  Am.  Law  of  Administration,  §  48, 
with  citations.  So,  likewise,  where  the  testator  includes  an  express 
clause  of  revocation  in  a  later  will,  which  fails  to  take  effect  through 
some  defect  therein,  but  not  where  it  fails  through  some  cause  dehors 
the  instrument.     Hairston  v.  Hairston,  30  Miss.  276. 

J&rman  on  Wills,  vol.  1,  p.  294,  states  the  rule  thus:  "Where  the 
act  of  cancellation  or  destruction  is  connected  with  the  making  of 
another  will  so  as  fairly  to  raise  the  inference  that  the  testator  meant 
the  revocation  of  the  old  to  depend  upon  the  efficacy  of  the  new  dis- 
position, such  will  be  the  legal  effect  of  the  transaction ;  and  therefore 


334  LAST  WILLS  AND  TESTAMENTS.  (Pait  1 

if  the  will  intended  to  be  substituted  is  inoperative  from  defect  of  at- 
testation, or  any  other  cause,  the  revocation  fails,  also,  and  the  original 
will  remains  in  force."  The  words  "or  any  other  cause"  may  give 
the  rule  too  much  breadth,  but  they  may  be  omitted  without  impairing 
the  rule  for  our  purpose.  Similarly  it  is  said  with  respect  to  partial 
obliterations  or  cancellations  that  if  they  are  made  with  the  intention 
of  substituting  other  words  for  those  cancelled,  and  such  intention  is 
frustrated,  there  is  no  revocation.  Woerner's  Am.  L,aw  of  Adminis- 
tration, §  49 ;  Jarman  on  Wills,  vol.  1,  p.  295,  with  the  cases  cited 
by  both  authors. 

As  before  remarked,  the  agreed  statement  upon  which  this  case  is 
tried,  while  it  says  that  the  alterations  are  all  in  the  testatrix's  hand- 
writing, does  not  say  with  what  intention  they  were  made.  Conse- 
quently we  can  assume  only  such  intention  as  the  acts  necessarily  im- 
ply. The  intention  to  revoke  is  indispensable  to  a  revocation,  what- 
ever the  act  may  be;  and  here  the  acts,  taken  together,  certainly  do 
not  imply  an  intention  to  revoke  absolutely  and  unconditionally,  but 
only  to  do  so  in  connection  with  and  dependently  upon  the  making  of 
certain  other  changes.  The  intention  expressed  in  such  further  altera- 
tions and  additions  having  been  frustrated  by  failure  to  comply  with 
the  statute',  it  must  be  held  that  there  was  no  revocation.  The  result 
is  that  yll  the  attempted  changes,  being  readily  distinguishable  and 
agreed/ipon,  go  for  nothing;  and  the  will  must  be  established  as  it 
was  originally  executed. 

JuGgment  reversed  and  cause  remanded.'* 


In  re  TOUSEY'S  WILU 

(Surroga^'s  Court,  New  York  County,  1901.    34  Misc.  Rep.  363,  69  N.  T.  Supp. 

846.) 

Thomas,  S.  The  contestant  concedes  that  the  papers  offered  for 
probate  were  duly  executed  by  the  decedent  as  her  last  will  and  codicil 
thereto.  The  sole  ground  of  contest  is  based  on  a  recital  in  the  will 
to  the  effect  that  the  decedent  was  unmarried  and  had  no  "direct 
heirs."  A  cousin  who  had  not  seen  her  or  communicated  with  her, 
either  directly  or  indirectly,  for  over  40  years  before  her  decease, 
contends  that  he  is  a  "direct  heir" ;  that  he  was  missing,  and  his 
whereabouts  were  not  known  to  the  members  of  his  immediate  family, 
for  some  years;   that  the  inference  to  be  drawn  from  the  language  of 

«*  In  Simmons  v.  Rudall,  1  Simons  (N.  S.)  114  flS51),  Wolf  v.  Bollinger,  62 
111.  308  (1872),  and  Thomas  v.  Thomas,  76  Minn.  237,  79  N.  W.  l04,  77  Am.  St. 
Rep.  039  (1899),  gifts  to  one  person  in  a  will  were  canceled  and  another  per- 
son's name  substituted  by  unattested  interlineation,  and  the  original  bene- 
ficiary was  allowed  to  take.  In  Goods  of  Greenwood,  [1892]  P.  7,  the  original 
executor  was  allowed  to  act  in  place  of  the  one  whose  name  was  substituted 
by  unattested  interlineation. 


Ch.  7)  THE   REVOCATION  OF  WILLS.  335 

the  will  is  that  the  decedent  mistakenly  supposed  him  dead,  and  made 
the  will  because  of  this  mistake;  and  that  as  against  bun  she  died 
intestate.  Second  cousins  were  mentioned  by  name  in  the  will,^  and  it 
is  clear  that  the  decedent  did  not  regard  them  as  "direct  heirs."  She 
probably  used  the  word  "direct"  for  "lineal,"  and  I  am  not  satisfied 
that  she  made  any  mistake  whatever. 

The  doctrine  of  dependent  relative  revocation  includes  as  one  of  its 
branches,  and  applies  to  an  attempted  revocation  of  a  testamentary 
provision  which  upon  some  ground  of  mistake  is  held  inoperative.    If 
applicable  to  a  will,  it  must  appear  clearly,  from  the  will  itself,  not 
only  that  there  has  been  a  mistake  made  by  the  testator,  but  also  just 
what  he  would  have  done  in  case  there  had  been  no  mistake.    Gifford 
V.  Dyer,  2  R.  I.  99,  57  Am.  Dec.  708.      Where  a  legacy  was  made  by  a 
will,  and  in  a  codicil  revoking  it  it  was  recited  that  the  legatee  was 
dead   such  revocation  was  held  inoperative  on  proof  that  the  legatee 
survived  the  testator  (Campbell  v.  French,  3  Ves.  321)  ;    but,  even 
in  case  of  revocation  by  codicil,  the  rule  has  been  applied  with  caution, 
and  the  mistake  must  appear  on  the  face  of  the  codicil  as  the  sole 
moving  cause  to  induce  the  revocation  (Skipwith  v.  Cabell's  Ex'r,  19 
Grat.  [Va.]  758).^''    An  apparent  mistake  as  to  a  matter  of  fact,  as  to 
which  the  testator  must  have  had  full  knowledge,  is  not  sufficient. 
Mendinhall's  Appeal,  124  Pa.  387,  16  Atl.  881,  10  Am.  St.  Rep.  591. 
In  no  case  which  has  been  brought  to  my  notice  has  a  will  been 
refused  probate,  or  has  any  attempt  been  made  to  correct  or  change  its 
provisions,  on  proof  extraneous  to  the  document  of  a  mistake  by  the 
testator  as  to  a  fact  which  might  possibly  have  led  him  to  do  something 
different  from  what  he  has  done.     On  the  contrary,  the  cases  in  the 
courts  of  this  state,  which  require  the  testator's  directions  to  be  fol- 
lowed, even  though  it  may  be  made  quite  clearly  to  appear  that  he 
was  actuated  by  erroneous  opinions  on  questions  of  fact,  are  quite 
numerous.     In  re  Bedlow,  67  Hun,  414,  22  N.  Y.  Supp.  290 ;    Clapp 
V    Fullerton,  34  N.  Y.  190,  90  Am.  Dec.  681 ;   In  re  Hams'  Will,  19 
Misc.  Rep.  388,  44  N.  Y.  Supp.  341;    Creely  v.  Ostrander,  3  Bradf. 

Sur.  (N.  Y.)  107.  1  ^        ^  .u        -n 

The  objections  of  the  contestant  must  be  overruled,  and  the  will 

admitted  to  probate.* 

as  Tn  this  case  the  codicil,  dated  November  27,  1S61,  read,  "In  consequence 
of  the  state  oTthe  country,  i  now  revoke  my  bequests,"  and  it  was  contended 
?hi  the  testatrix  revoked  the  bequests  because  she  erroneously  believed 
that  they  wouM  be  confiscated  under  the  sequestration  act  of  the  Confederate 
States  The  court  refused  "to  go  outside  of  the  will  and  to  ascertain  what 
IS?  the  particular  views  and  opinions  of  the  testatrix,  so  as  to  lay  the 
f'n?!n,inHon  for  a  case  of  mistake."  See,  also,  Newton  v.  Newton,  12  Q.  Ch. 
Ts  (1861)     Dunham  V.  Averill,  45  Conn.  61,  29  Am.  Rep.  642  (1877) 

*  This  case  is  inserted  here  to  bring  out  the  distinction  between  the  case  of 
the  TaLng  oJ  a  win  under  a  mistta.en  notion  about  the  possible  or  actual 
beneficiaSfs  and  the  case  of  the  revocation,  under  such  misapprehension,  ot  a 
testamentary  provision  already  made. 


336  .  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

Appeal  of  STRONG. 

(Supreme  Court  of  Errors  of  Connecticut,  1906.     79  Conn.  123,  63  Atl.  1089, 
6  L.  R.  A,  [N.  S.]  1107,  118  Am.  St.  Rep.  138.) 

Baldwin,  J.^°  *  *  *  'j^j^g  paper  presented  to  the  court  of  pro- 
bate as  the  will  of  Miss  Strong  was  in  a  condition  which  had  some 
tendency  to  show  that  she  had  revoked  it.  It  had  been  torn  and  it 
had  been  marked  by  her  as  "Superseded  by  written  one."  It  has  not 
been  found  by  the  superior  court  that  she  tore  it,  but  we  shall  treat 
the  case  as  if  such  a  finding  had  been  made,  and  as  if  whatever  she  did 
was  done  "be fore  she  became  delirious  in  her  last  illness. 

No  act  of  tearing  or  cancellation  destroys  a  will  unless  it  be  done 
with  the  intention  of  revoking  it.  An  intent  to  revoke  may  be  either 
absolute  and  final,  or  dependent  on  the  existence,  or  a  belief  in  the  ex- 
istence of  circumstances.  The  words  "Superseded  by  written  one" 
sufficiently  indicate  that  when  Miss  Strong  wrote  them  she  assumed 
that  the  draft  in  her  handwriting  then  had  full  testamentary  force  and 
effect,  and  so,  as  it  covered  the  same  ground  in  a  different  manner  had 
destroyed  her  previous  dispositions  by  will. 

These  were  treated  as  destroyed  simply  because  they  had  been  re- 
placed by  something  else.  Here  she  was  acting  under  a  mistake,  and 
one  apparent  from  the  words  used  to  effect  the  cancellation.  This 
mistake  was  plainly  the  sole  cause  for  the  revocation  which  she  in- 
tended to  declare.  Unless  she  exercised  the  power  of  disposition  giv- 
en her  by  Mr.  Harris,  the  fund  which  was  subject  to  it  would  go  to 
strangers  to  her  blood.  The  main  object  both  of  the  will  and  of  the 
draft  will  was  to  exercise  it.  The  case,  therefore,  is  within  the  rea- 
son of  the  rule  that  a  writing  purporting  to  revoke  a  will  on  account 
of  the  existence  of  a  certain  fact  does  not  revoke  it  if  there  be  no  such 
fact.    Dunham  v.  Averill,  45  Conn.  61,  80,  29  Am.  Rep.  642. 

It  is  true  that  the  mistake  is,  at  bottom,  one  of  law.  Miss  Strong 
supposed  that  her  unsigned  and  unattested  will  would  have  full  effect 
upon  her  decease.  In  law  it  had  no  effect.  But  as  respects  a  question 
of  this  nature,  it  is  immaterial  whether  the  mistake  under  which  the 
act  of  revocation  was  done  were  one  of  fact  or  law.  The  act  was 
nothing  unless  done  with  the  intent  of  revocation.  If  the  intent  to 
revoke  was,  as  in  this  case,  clearly  dependent  on  a  reliance  upon  a 
certain  legal  consequence  attributed  to  certain  circumstances,  an  error 
in  attributing  that  effect  to  them  is  as  effectual  a  bar  to  an  actual  revo- 
cation as  if  it  were  a  pure  error  of  fact.  Security  Co.  v.  Snow,  70 
Conn.  288,  294,  39  Atl.  153,  66  Am.  St.  Rep.  107 ;  Stickney  v.  Ham- 
mond, 138  Mass.  116,  120;  Clarkson  v.  Clarkson,  2  Sw.  &  Tr.  497. 

The  expression  of  the  motive  for  the  act  of  cancellation  must  gov- 
ern the  result  of  the  act  of  tearing  the  will.  The  will  and  draft  will 
having  been  found  in  the  same  envelope,  it  is  evident  that  whatever 

•''I'art  only  of  the  opinion  is  given. 


Ch.  7)  THE   REVOCATION   OF   WILLS.  337 

Miss  Strong  did  constituted  one  transaction  proceeding  from  the  same 
intent  and  actuated  by  the  same  cause.  It  is  found  by  the  superior 
court  that  the  will  signed  in  1897,  was  executed  in  all  respects  accord- 
ing to  law,  and  that  Miss  Strong  was  then  of  full  age  and  sound  mind 
and  memory.     It  should,  therefore,  have  been  admitted  to  probate. 

The  superior  court  is  advised  to  disaffirm  the  decree  of  the  court 
of  probate,  and  admit  the  paper  propounded  as  the  will  of  Miss  Strong. 
to  probate,  as  such. 
C08T,  Wills— 22 


338  LAST   WILLS  AND  TESTAMENTS.  (Part  1 

CHAPTER  VIII 
THE  REPUBLICATION  AND  REVIVAL  OF  WILLS 


SECTION  1.— STATUTES 


WILLS  ACT   (1837). 

XXII.  And  be  it  further  enacted  that  no  will  or  codicil,  or  any  part 
thereof,  which  shall  be  in  any  manner  revoked,  shall  be  revived  other- 
wise than  by  the  re-execution  thereof,  or  by  a  codicil  executed  in  man- 
ner hereinbefore  required,  and  showing  an  intention  to  revive  the 
same ;  and  when  any  will  or  codicil  which  shall  be  partly  revoked  and 
afterwards  wholly  revoked  shall  be  revived,  such  revival  shall  not  ex- 
tend to  so  much  thereof  as  shall  have  been  revoked  before  the  revoca- 
tion of  the  whole  thereof,  unless  an  intention  to  the  contrary  shall  be 
shown. 

XXIII.  And  be  it  further  enacted,  that  no  conveyance  or  other  act 
made  or  done  subsequently  to  the  execution  of  a  will  of  or  relating  to 
any  real  or  personal  estate  therein  comprised,  except  an  act  by  which 
such  will  shall  be  revoked  as  aforesaid,  shall  prevent  the  operation  of 
the  will  with  respect  to  such  estate  or  interest  in  such  real  or  personal 
estate  as  the  testator  shall  have  power  to  dispose  of  by  will  at  the  time 
of  his  death. 

XXIV.  And  be  it  further  enacted,  that  every  will  shall  be  construed 
with  reference  to  the  real  and  personal  estate  comprised  in  it  as  if  it 
had  been  executed  immediately  before  the  death  of  the  testator,  unless 
a  contrary  intention  shall  appear  by  the  will. 

7  Wm.  IV  &  1  Vict.  c.  26,  §§  XXII-XXIV  (1837).^ 

1  "Under  the  Statute  of  Frauds,  to  republish  a  devise  of  freehold  estate 
required  an  attestation  by  three  vv-itnosses ;  while,  on  the  other  hand,  a  will 
might  have  been  republished  with  respect  to  copyhold  and  personalty  with- 
out any  attestation.  It  was  not  often  necessary,  however,  to  inquire  as  to 
the  republication  of  wills  of  personal  estate,  inasmuch  as  a  residuary  be- 
quest, even  under  the  old  law,  embraced  all  that  species  of  property  of 
which  the  testator  died  possessed ;  so  that  republication  (which  merely  caus- 
ed the  will  to  speak  and  operate  from  the  period  of  its  being  rei)ublished) 
had  no  effect  in  enlarging  the  operation  of  such  a  bequest."  1  Jarman  on 
Wills  (Gth  Ed.)  *1^^^. 

Prior  to  the  Statute  of  ]B;rauds  a  republication  of  a  will  of  realty  could  be 
bv  parol.  Beckford  v.  Parnecott,  Cro.  Eliz.  493  (159G).  Compare  Jones  v. 
Hartley,  2  \Vhart.  (Pa.)  103  (1837). 


Ch.  8)  THE  REPUBLICATION  AND  REVIVAL  OF  WILLS.         33^ 

SECTION  2.— REPUBLICATION 


CARLETON  ex  dem.  GRIFFIN  v.  GRIFFIN. 
(Court  of  King's  Bench,  1758.    1  Burr.  549.) 

Ejectment,  brought  upon  the  demise  of  the  heir  at  law.  The  de- 
fendant claimed  under  a  will  dated  May  2,  1752.  That  will  was 
written  by  the  testator  himself  and  signed  by  him,  but  there  was  no 
seal  nor  witness  to  it.  January  5,  1754,  the  testator  wrote  on  the  same 
piece  of  paper  certain  gifts  of  personal  property  to  his  wife,  and  in 
this  additional  writing  said :  "And  this  not  to  disannul  any  of  the 
former  part  made  by  me,  the  2d  of  May,  1752;  except  that  my  wife 
shall  not  be  liable  to  pay  to  my  son  John,"  etc.  The  exception  did  not 
relate  to  the  real  estate.  The  testator  signed  this  additional  writing  in 
the  presence  of  three  witnesses.  And  then  he  took  the  said  sheet  of 
paper  in  his  hand  and  declared  it  to  be  his  last  will  and  testament,  in* 
the  presence  of  the  said  three  witnesses ;  and  then  delivered  it  to 
them  and  desired  they  would  attest  and  subscribe  it  in  his  presence 
and  in  the  presence  of  each  other;   which  they  accordingly  did. 

A  verdict  having  been  given  for  the  plaintiff  subject  to  the  opinion 
of  the  court,  the  first  question  was : 

(1)  Whether  the  republication  of  the  said  first  will  (made  in  1752) 
upon  the  5th  of  January,  1754,  be  a  publication  or  republication  of  his 
first  will,  within  the  statute  of  frauds. 

Mr.  Justice  Denison.^  A  man  may  make  his  will  at  different  times ;. 
and  the  witnesses  may  attest  at  different  times.  Here,  an  illiterate 
man  makes  and  signs  his  will,  in  which  there  is  a  devise  of  lands.  Ta 
be  sure,  if  he  had  died  before  attestation,  the  devise  of  the  land  had 
not  been  valid.  But  afterwards,  he  adds  more  to  it,  on  the  same  sheet 
of  paper,  and  declares,  "that  he  does  not  thereby  mean  to  disannul 
any  part  of  his  former  devise  and  disposition,"  and  signs  it,  and  then 
takes  the  sheet  of  paper  in  his  hand,  and  declares  it  to  be  his  last  will 
and  testament,  in  the  presence  of  three  witnesses,  and  desires  the  wit- 
nesses to  attest  it,  which  they  do  in  his  presence,  &c. 

This  must  be  considered  as  one  entire  will,  made  at  different  times ;, 
and  attested  agreeable  to  the  statute  of  frauds.     *     *     * 

Mr.  Justice  Wilmot.  He  also  considered  this  as  an  entire  instru- 
ment, and  as  a  continuation  of  the  former  act.     *     *     * 

And  the  testator's  having  originally  signed  the  former  part  is  out 
of  the  case,  and  makes  no  difference ;  for  it  was  not  at  all  necessary 
or  material  to  it,  as  a  will  of  personal  estate,  and  the  signing  alone, 

2  The  statement  of  facts  is  abbreviated,  the  opinion  of  Lord  Mansfield  Is 
omitted,  and  part  only  of  the  other  opinions  is  given. 


340  LAST   WILLS   AND   TESTAMENTS.  (Part   1 

unattended  with  the  other  requisites,  was  not  sufficient  to  render  it 

effectual   as  a   will  of   land.     Therefore   it  was   totally   immaterial. 
*     *     * 

Per  Cur,   (unanimously).     Let  the  postea  be  delivered  to  the  de- 
fendant. 


WILLIAMS  V.  GOODTITLE. 

(Ctourt  of  King's  Bench,  1830.     10  B.  &  C.  895.) 

Ejectment  for  lands  in  Glamorganshire.  Plea,  not  guilty.  At  the 
trial  at  the  spring  great  sessions  for  the  county  of  Glamorgan,  1828, 
the  jury  found  a  special  verdict,  the  material  parts  of  which  were  as 
follows:  That  David  Thomas,  being  seised  in  fee  of  certain  real  es- 
tates, on  the  24th  of  April,  1795,  made  his  will  in  writing,  duly  execut- 
ed and  attested,  for  passing  real  estates,  whereby,  after  various  other 
devises,  he  gave  and  devised  "all  the  rest  of  his  real  estate  whatsoever 
and  wheresoever  situate,  not  therein  before  particularly  devised,  unto 
his  wife  Elizabeth  Thomas,  her  heirs  and  assigns,  absolutely  forever." 
That  afterwards  the  testator  purchased  other  real  estates  (part  of 
which  formed  the  subject-matter  of  this  ejectment),  and  afterwards 
made  a  codicil  in  writing,  duly  executed  and  attested,  to  pass  real 
^estates  as  follows:  "Whereas  I  did  by  my  last  will  and  testament  in 
writing,  duly  executed  and  attested,  give,  devise,  and  bequeath  all  the 
real  and  personal  estate  I  was  then  possessed  of  in  the  manner  therein 
_mentioned,  and  which  said  will  I  do  hereby  ratify  and  confirm."  The 
testator  then  recited,  that  since  the  date  of  his  said  will  he  had  pur- 
chased other  property,  including  that  now  in  question,  and  devised  the 
same  to  his  wife  for  life,  and  after  her  death  he  devised  the  part  there- 
of now  in  question  to  trustees  upon  trusts  that  were  bad  in  law,  and 
the  residue  specifically  to  certain  persons  in  fee.  The  testator  died  on 
the  19th  July,  1814,  leaving  his  wife  him  surviving,  and  the  defend- 
ant Elizabeth  Williams  his  heiress  at  law.  Elizabeth  Thomas,  the 
widow  of  the  testator,  died,  before  the  date  of  the  demise  in  the  dec- 
laration, intestate,  leaving  John  David,  the  lessor  of  the  plaintiff,  her 
heir  at  law.  Upon  this  verdict  the  court  of  great  sessions  gave  judg- 
ment for  the  plaintiff,  whereupon  a  writ  of  error  was  brought  and  the 
common  errors  assigned. 

Lord  Tenterden,  C.  J.  I  am  of  opinion  that  the  will  and  codicil 
are  to  be  considered  as  one  instrument  made  at  the  date  of  the  codicil. 
Then  it  appears  that  there  is  a  devise  to  the  wife  for  life,  then  certain 
other  devises  follow,  and,  lastly,  there  is  a  general  residuary  clause 
in  favor  of  the  wife.  It  is  admitted  that,  if  all  that  were  in  a  will,  the 
particular  devise  and  residuary  clause  might  well  stand  together,  and 
the  wife  would  take  under  the  residuary  clause.  Now  I  think  that 
the  expression  at  the  commencement  of  the  codicil  in  question  shows 
the  intention  of  the  testator  to  have  been  to  ratifv  his  will  as  to  all 


Ch.  8)       THE  REPUBLICATION  AND  REVIVAL  OF  WILLS. 

that  he  was  possessed  of  at  the  time  of  the  ratification,  and  that  being 
so,  the  lessor  of  the  plaintiff  below,  as  heir  at  law  of  the  widow,  wa 
clearly  entitled  to  recover.    Judgment  affirmed.' 


In  re  CHAMPION. 

DUDLEY  V.  CHAMPION. 

(Supreme  Court  of  Judicature,  Court  of  Appeal.    [1893]  1  Ch.  101.) 

LiNDLEY,  L.  J.*  This  case  does  not  present  much  difficulty.  The 
testator  by  his  will  devised  a  freehold  cottage  and  the  land  and  appur- 
tenances thereto  belonging,  which  he  described  as  "now  in  my  own 
occupation,"  to  trustees  upon  certain  trusts.  After  the  date  of  his 
will  he  bought  two  other  fields  adjoining  the  cottage,  and  then  he 
made  a  codicil  shortly  before  his  death  by  which  he  substituted  other 
trustees  for  those  named  in  his  will,  and  confirmed  his  will  in  other 
respects.  This  codicil  having  been  made  after  the  purchase  of  the 
two  fields,  what  is  its  effect  upon  the  devise  contained  in  the  will  ? 
In  my  opinion,  it  is  quite  clear  that  the  two  fields,  which  as  well  as  the 
cottage  were  in  his  own  occupation  when  he  made  the  codicil,  passed 
to  the  trustees  together  with  the  cottage  and  its  appurtenances.  This 
was  the  first  point  argued,  and  on  it  there  can  be  no  doubt.  *  *  * 
The  appeal  must  therefore  be  dismissed."^ 

BowEN  and  A.  L.  Smith,  L.  JJ.,  concurred. 

«  "That  a  codicil  makes  the  will  speak  as  of  Its  own  date  must  be  admit- 
ted to  be  the  general  rule;  but  it  may  nevertheless  be  framed  in  such  a 
manner  as  to  operate  as  a  partial  republication  only,  or  to  work  no  repub- 
lication at  all.  If.  for  example,  I  leave  by  will  all  my  farms  at  Dale  to  A., 
and,  having  afterwards  acquired  another  farm  at  Dale,  I  say  in  a  subsequent 
codicil,  'I  hereby  give  to  B.  the  identical  farms  which  my  will  has  given 
to  A.,'  it  would  obviously  be  doing  violence  to  the  language  to  construe  those 
Words  as  carrying  the  newly  acquired  farm."  Brougham,  L.  C,  in  Monypen- 
ny  V.  Bristow.  2  Russ.  &  Myl.  117,  1.32  (1832).  "If,  therefore,  the  language  of 
the  original  will  be  such  as,  if  used  at  the  date  of  the  republication,  it  would 
not  include  the  after-purchased  estate  in  its  terms  or  description,  or  if 
the  act  of  republication  be  accompanied  with  other  provisions,  indicating 
that  it  was  the  intention  of  the  testator  to  limit  the  operation  of  the  will, 
as  republished,  to  the  same  estate  which  was  given,  and  which  would  legally 
pass  by  the  original  will,  then,  notwithstanding  such  republication,  the  de- 
vise will  not  include  the  after-purchased  estate,  because,  although  the  power 
then  exists  to  devise,  yet  the  intent  is  wanting,  and,  as  both  do  not  con- 
cur, the  after-purcfliased  estate  does  not  pass."  Shaw,  C.  J.,  in  Haven  v.  Fost- 
er, 14  Pick.  ^^Iass.)  534,  541  (1833).  Compare  In  re  Portal  and  Lamb,  30 
Ch.  D.  50  (1885),  where,  however,  there  was  no  codicil. 

4  The  statement  of  facts  and  the  opinion  of  North,  J.,  in  the  court  below 
are  omitted,  and  part  only  of  the  opinion  in  the  Court  of  Appeal  is  given. 

8  But  compare  the  following  remarks  of  Lord  Crauworth,  V.  C,  in  Stilwell 
T.  Mellersh,  20  L.  J.  Ch.  356,  361,  362  (1851) : 

"In  my  opinion,  then,  when  it  is  said  a  codicil  republishing  a  will,  or  con- 
firming a  will,  makes  the  will  speak  from  the  time  of  republication,  that 
does  not  mean  that  you  are  to  read  the  will  in  any  way  different  from  the 
mode  in  which  it  would  have  been  read  if  the  testator  had  died  the  moment 


LAST  WILLS  AND  TESTAMENTS.  (Part  1 

In  re  GOODS  OF  TRURO. 
(Court  of  Probate,  18G6.    L.  R.  1  P.  &  D.  201.) 

he  Dowager  Lady  Truro  died  on  the  21st  of  May,  1866,  leaving-  a 
will  dated  the  15th  of  September,  1865,  and  a  codicil  dated  the  10th  of 
October,  1865.  The  will  contained  the  following  clause:  "I  likewise 
bequeath  to  the  present  Baron  Truro,  in  affectionate  recollection  of 
his  kindness  to  me,  all  my  library  and  books  and  maps,  except  such 
parts  thereof  as  I  shall  herein  or  after  or  by  codicil  otherwise  dispose 
of ;  and  also  all  my  engravings,  paintings,  pictures,  and  drawings,  save 
and  except  such  parts  thereof  as  I  shall  herein  or  after  or  by  codicil 
otherwise  dispose  of;  also  all  my  household  bed  and  table  linen,  and 
also  all  such  articles  of  silver  plate  and  plated  articles  as  are  contained 
in  the  inventory  signed  by  me  and  deposited  herewith." 

The  will  was  deposited  by  the  deceased  at  Messrs.  Coutts',  the 
bankers,  in  an  envelope  with  an  indorsement  in  her  writing,  and  in 
the  same  envelope  with  the  will  was  found  an  inner  envelope  contain- 
ing a  list  of  plate.  The  list,  which  was  in  several  sheets,  was  headed 
"List  of  plate  and  plated  articles  left  by  my  will  dated  the  15th  of 
September,  1865,  to  the  present  Baron  Truro.  Augusta  E.  Truro." 
The  list  was  signed  by  the  deceased  in  several  places,  and  on  the  last 
sheet  was  her  signature  and  the  date,  21st  of  September,  1865.  Affi- 
davits were  filed  showing  that  the  will  and  the  list  were  deposited  with 
Messrs.  Coutts  on  the  21st  of  September,  1865,  and  that  the  codicil 

after  he  had  executed  it.  What  absurdities  otherwise  would  arise.  Sup- 
pose I  by  my  will  say  I  give  £.500  to  the  present  treasurer  of  Lincoln's  Inn, 
and  this  day  twelve  months  I  republish  uiy  will,  does  that  alter  the  party 
who  is  to  take  the  legacy?  That  must  he  so,  if  it  is  to  be  read  as  if  I  had 
written  it  over  again;  the  'present'  treasurer  would  be  a  different  person. 
So  I  conceive  if  I  had  said,  I  devise  all  the  estates  of  which  I  am  now  seis- 
ed. I  afterwards  purchase  lands  and  republish  my  will.  I  confess  I  think 
the  same  principle  applies  as  governed  Tvord  Cottenham  in  Cole  v.  Scott  [1 
Hall  &  Tw.  477].  My  will  must  be  read  in  the  same  way  as  if  I  had  said, 
I  give  all  the  lands  of  which  I,  on  this  24th  day  of  March,  1851,  am  seised, 
and  if  I  republish  that  in  1852,  it  will  still  be  read  just  as  it  was  before; 
it  will  refer  only  to  that  which  Is  there  mentioned.  Now,  the  cases  in  which 
this  question  has  often  arisen  and  with  which  we  are  familiar  are  these : 
where  a  party  says  by  his  will,  *I  give  all  my  lands,'  what  does  that  mean? 
All  the  lands  that  I  have  power  to  give.  When,  a  year  afterwards,  I  re- 
publish that  will,  having  intermediately  purchased  lands,  it  will  apply  to  the 
after-purchased,  lands.  It  is  to  be  read  just  as  if  I  had  put  in  those  words, 
'all  the  estates  which  I  had  power  to  give.'  Therefore,  it  seems  to  me  that 
the  distinction  is  manifest  between  an  express  date  or  an  express  name  fixed 
upon.  You  cannot  alter  that  by  saying  you  republish  the  will  at  a  different 
time.  You  do  republish  it  so  as  to  make  it  operate  from  that  other  later 
time,  and  if  there  be  any  legal  effect  that  is  brought  to  operate  by  what  has 
taken  ])lace  In  the  mean  time,  you  have  the  benefit  of  that  But  you  cannot 
alter  the  meaning  of  the  will,  which  you  will  be  doing  if,  by  republishing  the 
will,  you  are  to  treat  the  testator  as  liaving  meant  something  by  his  will  dif- 
ferent from  that  which  he  has  there  expressed.  With  regard  to  the  case  in 
the  Court  of  Error  of  Williams  v.  Goodlitle  |10  P..  &  C.  S'J.'>],  I  think  that  is 
all   perfectly   intelligible   and   right.     A   testator  there,   under  the  old  state 


/ 


Ch.  S)      THE  REPUBLICATION  AND  REVIVAL  OF  WILLS.         343 

was  deposited  at  a  subsequent  date.  One  of  the  affidavits  also  proved 
that  when  the  will  was  executed  the  attention  of  the  testatrix  was  call- 
ed to  the  importance  of  signing  the  inventory  and  depositing  it  with 
her  will,  and  that  she  intimated  her  intention  of  acting  upon  that  sug- 
gestion. 

The  Queen's  Advocate  and  Dr.  Spinks  moved  for  probate  of  the 
will  of  the  loth  of  September,  1865,  the  list  of  plate  dated  the  21st  of 
September,  1865,  and  the  codicil  of  the  10th  of  October,  1865. 

Sir  J.  P.  Wilde.  I  have  very  serious  doubts  whether  I  could  allow 
this  list  to  form  part  of  the  probate  if  the  question  depended  upon  the 
words  of  the  will,  because,  although  to  some  extent  they  point  to  an 
existing  document,  I  should,  construing  them  by  the  existing  facts, 
read  them  as  meaning,  not  that  the  document  had  been  signed  at  the 
time  when  the  will  was  executed,  and  would  be  deposited  with  it,  but 
as  meaning  that  it  would  be  signed  and  deposited  when  the  will  should 
be  deposited.  There  is  no  distinct  reference  to  an  existing  document. 
For,  though  the  testatrix,  in  using  the  words,  "signed  by  me,  and 
deposited  herewith,"  would  prima  facie  seem  to  mean  "now  already 
signed  and  deposited,"  yet  those  words,  like  all  others  in  a  written 
document,  must  be  construed  in  connection  with  the  existing  and  sur- 
rounding state  of  things.  Now,  the  will  could  not  have  been  deposited 
at  the  time  at  which  the  testatrix  was  speaking,  and  the  list  when  pro- 
duced was  plainly  not  signed  till  the  31st  of  September.  The  true 
meaning,  therefore,  of  the  words,  as  spoken  at  that  date,  would  seem 
to  be,  "a  list  which  I  intend  to  sign  and  deposit,"  etc.  It  is,  however, 
unnecessary  to  decide  whether  the  list  is  incorporated  with  the  will, 

of  the  law.  devises  all  his  lands:  that  pas?es  all  he  was  then  seised  of; 
he  republishes  his  will  afterwards  by  a  codicil,  the  legal  effect  of  that  is  to 
pass  after-purchased  land,  because  the  will  speaks  from  that  time.  In  both 
cases  it  means  all  the  lands  he  had  power  to  dispose  of  by  law.  The  effect 
could  not  be  altered  by  the  circumstance  that  in  his  codicil  he  truly  recites 
that  by  his  will  he  had  devised  all  he  was  then  seised  of;  it  only  states 
what  is  the  legal  effect  of  his  will.  He  republishes  his  will:  the  legal  effect 
of  republishing  it  must  have  its  full  operation.  It  does  not  seem  to  me  that 
that  case  at  all  presses  upon  me.  I  was  turning  in  my  mind  whether  I 
could  recollect  any  cases  in  which  there  was  this  sort  of  devise,  'I  give  to 
all  my  present  children,'  then  an  after-born  child,  and  a  codicil  Tepublishing 
the  will :  certainly,  according  to  my  Impression,  that  would  not  give  to  the 
after-born  child.  I  am  not  clear  that  that  would  quite  govern  the  case, 
because  the  courts  have  stretched  a  good  deal  about  children  in  a  way  that 
they  have  not  done  in  other  cases.  I  rather  think  that  it  would  not.  At 
the  same  time,  I  was  not  prepared  for  this  sort  of  argument,  and  have 
therefore  not  looked  into  the  point.  If,  upon  looking  into  it,  or  being  assisted 
by  any  suggestion  from  counsel  on  one  side  or  the  other,  anything  should 
be  brought  to  my  mind  to  show  I  am  wrong,  I  should  be  most  ready  to  admit 
it,  and  the  more  so  because  I  do  firmly  believe  that  this  would  have  been  what 
the  testator  would  have  wished  to  do  if  his  attention  had  been  called  to  it.  I 
think,  although  I  cannot  so  construe  what  he  has  written,  I  do  form  a  very 
shrewd  guess  as  to  what  he  would  have  written  if  his  attention  had  been 
called  to  it,  and  he  would  have  wished  to  write  something  which  would  have 
the  meaning  that  it  is  contended  the  republication  of  the  will  does  give  to 
it.  I  do  not  find  that  within  the  four  corners  of  the  will,  therefore  I  do  not 
act  upon  it  as  the  intention  which  is  to  govern  me." 


344  LAST  WILLS   AND   TESTAMENTS.  ^Part  1 

because  I  am  of  opinion  that  it  is  entitled  to  probate  by  force  of  tlie 
codicil. 

This  makes  it  material  to  look  into  the  decisions  on  the  subject. 
The  general  rule  as  to  the  consequences  of  republication  is  thus  laid 
down  by  a  most  careful  and  learned  text-writer:  "It  has  long  been 
settled  law  that  the  republication  of  a  will  is  tantamount  to  the  making 
of  that  will  de  novo;  it  brings  down  the  will  to  the  date  of  the  repub- 
lishing, and  makes  it  speak,  as  it  were,  at  that  time.  In  short,  the 
will  so  republished  is  a  new  will."  Williams  on  Executors  (5th  Ed.) 
pt.  1,  bk.  2,  p.  188,  §  3. 

He  then  goes  on  to  refer  to  numerous  cases  which  have  been  decided 
in  accordance  with  this  principle,  and  amongst  others  to  Skinner  v. 
Ogle,  4  N.  of  C,  at  page  79,  where  it  was  held  that  "a  codicil  duly 
executed  will  give  effect  and  operation  to  a  will  altered  after  the  pass- 
ing of  the  act,  although  the  alteration  was  not  duly  attested,  and 
though  the  will  itself  was  executed  before  1838,"  and  to  In  the  Goods 
of  Hunt,  2  Robert.  632,  where  Sir  John  Dodson  held  that  a  codicil 
duly  executed  will  give  effect  to  unexecuted  papers  which  have  been 
written  between  the  periods  of  the  execution  of  the  will  and  the  codi- 
cil, although  the  latter  does  not  refer  to  the  former. 

The  question  came  before  Sir  C.  Cresswell  in  March,  1863,  In  the 
Goods  of  Stewart,  3  Sw.  &  Tr.  192,  and  in  June,  18C3,  In  the  Goods 
of  Matthias,  3  Sw.  &  Tr.  100.  In  the  first  case,  the  will  contained  this 
clause:  "I  direct  my  executors  to  distribute  all  pictures,  books,  and 
other  articles  according  to  any  list  or  lists  signed  by  me."  A  paper 
was  found  without  any  date,  but  which  was  executed  before  a  second 
codicil,  headed  "List  referred  to  in  my  will  and  codicil."  The  second 
codicil  commenced  "This  is  a  codicil  to  the  last  will  and  testament 
of  me.  *  *  *  I  hereby  confirm  my  last  will  with  all  the  codicils 
thereto  duly  signed  by  me."  "Held  that  the  unattested  paper  was 
sufficiently  identified  and  referred  to  in  the  will,  and  having  been  sign- 
ed before  the  execution  of  the  codicil  was  entitled  to  be  admitted  to 
probate  as  a  portion  of  the  will  confirmed  by  the  codicil." 

In  the  second  case  the  testatrix  executed  a  will  in  1848,  in  which  she 
requested  her  trinkets  to  be  divided  "as  I  shall  direct  in  a  small  mem- 
orandum." She  executed  a  codicil  in  1853,  and  another  in  ]862.  On 
her  death  the  will  and  two  codicils  and  a  paper  headed  "Memorandum 
of  trinkets  referred  to  in  my  will"  were  found  folded  together  in  a 
locked  portfolio.  There  was  no  evidence  to  show  that  the  memoran- 
dum was  in  existence  when  the  will  was  executed,  but  there  was  evi- 
dence from  which  it  might  be  inferred  that  it  was  in  existence  before 
the  date  of  the  last  codicil,  but  the  last  codicil  did  not  refer  to  it.  It 
was  held  "that  the  re-execution  of  the  will  by  the  last  codicil  could  not 
make  that  a  part  of  the  will  which  was  no  part  of  it  before,  and  that 
the  memorandum  ought  not  to  form  part  of  the  probate."  The  learned 
judge  is  reported  to  have  said :  "Assuming  it  as  a  fact  that  the  mem- 
orandum was  in  existence  before  the  date  of  the  last  codicil,  can  that 


Ch.  8)  THE    REPUBLICATION    AND    REVIVAL    OF    WILLS.  345 

entitle  it  to  form  part  of  the  probate?  There  is  nothing  to  show  that 
the  memorandum  was  in  existence  when  the  will  was  signed ;  it  there- 
fore formed  no  part  of  the  will.  How  can  the  execution  of  the  codicil, 
which  is  a  re-execution  of  the  will,  make  that  to  be  a  part  of  the  will 
which  was  no  part  of  the  will  before,  and  the  codicil  contains  no  ref- 
erence to  the  memorandum?"  And  accordingly  probate  of  the  memo- 
randum was  refused. 

Now  there  is  no  doubt  that  probate  could  not  have  been  granted  of 
that  memorandum,  because,  treating  the  will  as  having  been  re-ex- 
ecuted at  the  date  of  the  second  codicil,  the  reference  was  not  suffi- 
cient to  incorporate  it  according  to  the  rule  laid  down  in  Allen  v.  Mad- 
dock,  11  Moo.  P.  C.  427.  But  if  the  language  of  the  learned  judge 
was  intended  to  have  a  universal  application,  if  it  is  to  be  taken  as 
laying  down  a  general  rule  that  by  the  kind  of  re-execution  of  a  will 
which  is  involved  in  the  execution  of  a  codicil  nothing  can  be  inferen- 
tially  added  to  a  will  which  it  did  not  contain  before,  it  is  at  variance 
with  the  decision  of  the  same  learned  judge  in  In  the  Goods  of  Wyatt, 
2  Sw.  &  Tr.  495.  In  that  case  a  testator  executed  a  draft  will  in  April, 
1847,  and  an  engrossed  will  in  May,  1847.  In  September,  1854,  he 
executed  a  codicil  purporting  to  be  a  codicil  to  his  last  will  of  April, 
1847.  The  draft  will  contained  interlineations  and  cancellations  in 
the  testator's  handwriting  in  ink  and  in  pencil.  Both  wills  were  in 
the  handwriting  of  the  same  person,  who  deposed  that  he  copied  the 
engrossed  from  the  draft  will.  The  engrossed  will  agreed  with  the 
draft  will  as  altered  in  ink  but  not  as  altered  in  pencil.  Probate  was 
decreed  of  the  draft  will  of  April,  1847,  including  the  alterations  in 
ink,  in  so  far  as  they  agreed  with  the  will  of  May,  1847,  together  with 
the  codicil  of  1854,  but  not  those  in  pencil.  If  the  proposition  laid 
down  by  the  learned  judge  in  In  the  Goods  of  Matthias  [supra]  is  a 
general  one,  that  decision  cannot  be  supported.  I  think  that  the  prop- 
osition is  not  a  general  one,  but  must  be  read  in  reference  to  the  case 
to  which  it  refers. 

After  considering  these  cases  I  have  come  to  the  following  conclu- 
sion as  to  the  rule  by  which  the  court  should  in  future  be  guided  in 
dealing  with  the  republication  of  a  will  by  a  subsequent  codicil : 

It  is  plain  on  the  one  hand  that  the  republication  of  the  will,  which 
is  involved  in  the  execution  of  a  codicil,  may  have  the  effect  of  adding 
something  to  the  will  which  formed  no  part  of  it  when  executed,  and 
which  is  not  to  be  found  in  the  codicil  itself.  The  case  just  quoted. 
In  the  Goods  of  Wyatt,  2  Sw.  &  Tr.  494,  in  which  the  codicil  was 
held  to  give  effect  to  alterations  made  in  the  will  after  its  execution,  is 
a  direct  authority  for  this  proposition.  On  the  other  hand  it  is  plain 
that  there  must  be  a  very  distinct  limit  to  the  action  of  the  court  in 
this  direction.  For  the  tendency  of  such  a  doctrine,  if  not  restrained, 
would  be  to  place  unexecuted  papers  on  the  same  footing  with  those 
which  have  received  due  execution,  merely  because  they  were  in  exis- 
tence at  the  subsequent  date  of  the  execution  of  a  codicil. 


346  LAST   WILLS  AND   TESTAMENTS.  (Part  1 

The  court  cannot,  according  to  the  authorities,  give  greater  or  less 
effect  to  a  codicil  than  this :  To  treat  its  execution  as  if  the  testator 
had  at  the  same  time  sat  down  and  re-executed  his  will.  Looked  at 
in  that  light,  the  following  rule  would  appear  to  be  the  consequence: 
Where  the  will,  if  treated  as  executed  on  the  date  of  the  codicil,  and 
read  as  speaking  at  that  date,  contains  language  which,  within  the 
principle  of  Allen  v.  Maddock  [supra]  would  operate  as  an  incorpor- 
ation of  the  document  to  which  it  refers,  testamentary  effect  may  be 
given  to  such  document.  But  when  this  is  not  the  case,  the  mere  fact 
of  unexecuted  papers  having  been  written  or  signed  between  the  date 
of  the  will  and  that  of  the  codicil,  will  not  suffice  to  add  such  papers 
to  the  will  by  force  of  republication,  or  to  make  that  testamentary 
which  would  not  have  been  so  if  the  will  had  been  originally  executed 
at  the  later  date. 

Applying  that  doctrine  to  the  present  case,  and  treating  this  will  as 
having  been  re-executed  on  the  date  of  the  codicil,  its  language  runs 
thus :  "And  also  all  such  articles  of  silver  plate  and  plated  articles  as 
are  contained  in  the  inventory  signed  by  me  and  deposited  herewith." 
Now,  construing  these  words  by  the  light  of  the  events  which  had 
then  happened,  they  appear  with  sufficient  distinctness  to  refer  to  a 
document  then  existing.  For  the  inventory  referred  to  had  then  been 
signed  by  the  testatrix  and  deposited  at  the  bankers.  The  operation 
of  the  codicil  as  a  re-execution  of  the  will,  therefore,  gets  rid  of  all 
difficulty,  and  I  admit  the  will  and  the  codicil  to  probate,  together  with 
the  mventory  signed  by  the  testatrix. 


In  re  GOODS  OF  REID. 
(Court  of  Probate,  18G8.    38  L.  J.  [N.  S.]  P.  &  M.  1.) 

Mary  Reid,  late  of  Oxford  Parade,  Cheltenham,  in  the  county  of 
Gloucester,  widow,  died  on  or  about  the  19th  of  October,  1867,  leav- 
ing a  duly  executed  will  and  codicil.  The  will  bore  date  the  24th  of 
May,  1864 ;  the  codicil  was  not  dated,  but  it  appeared  from  the  affida- 
vit of  the  attesting  witnesses  that  it  was  executed  in  the  latter  part  of 
April  or  the  beginning  of  May,  1866.  By  her  will  she  gave  all  her 
ready  money  to  her  executors,  "to  pay  her  funeral  expenses,  &c.,  as 
also  some  small  sums  as  remembrances  to  friends,  to  be  named  in  a 
letter  addressed  to  my  two  nieces,  Margaret  G.  Thain  and  Lilias 
Thain,"  whom  she  appointed  residuary  legatees.  In  disposing  of 
certain  sheep  in  Australia,  she  divided  the  flock  into  four  parts.  Three 
of  these  she  specifically  bequeathed,  and  then  continued,  "the  other 
portion  to  be  given  to  my  residuary  legatees,  to  be  appropriated  by 
them  as  specified  in  my  letter." 

The  codicil  ran  thus:  "In  consequence  of  some  deaths  in  our  fam- 
ily, it  is  necessary  that  I  add  a  short  codicil  to  my  will,  &c.     In  the 


Ch.  8)      THE  REPUBLICATION  AND  REVIVAL  OP  WILLS.         347 

first  place,  my  set  of  pearl  ornaments,  which  I  then  left  to  Mary  Ewe- 
retta  Thain,  in  consequence  of  her  early  and  melancholy  death,  so 
much  lamented  by  us  all,  I  must  now  destine  to  someone  else,  and  as 
Mrs.  Thain  has  no  female  in  her  family  that  either  she  or  I  would 
wish  to  possess  those  family  jewels,  I  now  leave  them  as  intimated  in 
the  letter  addressed  to  my  residuary  legatees." 

The  will  and  codicil  were  found  in  an  envelope  in  a  sealed  parcel. 
In  the  same  parcel,  but  in  a  separate  envelope,  two  unexecuted  testa- 
mentary papers  were  also  found.  Paper  No.  1  bore  date  the  1st  of 
March,  1866,  and  commenced  thus:  "To  my  dear  nieces,  Margaret 
G.  Thain  and  Lilias  Thain,  named  in  my  last  will  and  testament  as 
my  residuary  legatees,  and  to  whom  I  there  stated  it  was  my  intention 
to  address  to  them  a  letter  which  I  wish  to  be  equally  binding  and 
legal  as  if  its  contents  had  been  expressed  in  the  will  itself.  This  my 
intimated  intention  I  now  shall  endeavor  to  perform."  The  paper 
gave  trifling  legacies  to  certain  friends  and  acquaintances,  and  also 
referred  to  her  pearls — this  reference  and  some  other  portions  of  the 
document  being  in  pencil. 

Paper  No.  2  simply  expressed  a  wish  that  the  fourth  part  of  the 
sheep  in  Australia  might  go  towards  forming  a  fund  to  pay  off  a  debt 
on  a  cottage,  and  had  at  the  foot  of  it,  "Cheltenham,  1865."  Both 
papers  were  in  the  handwriting  of  the  deceased. 

Dr.  Swabey  moved  for  probate  of  the  will  and  codicil,  together  with 
the  two  unexecuted  testamentary  papers  as  incorporated  by  reference. 
Although  the  will  does  not  refer  to  an  existing  paper,  the  unexecuted 
documents  were  written  before  the  codicil,  and  in  it  the  reference  "I 
now  leave  them  as  intimated  in  the  letter  addressed  to  my  residuary 
legatees"  is  a  reference  to  an  existing  document. 

Sir  J.  P.  Wilde.  I  think  that  those  papers  cannot  be  admitted  to 
probate  as  part  of  the  will.  Dealing  with  the  case  as  it  appears  on  the 
face  of  the  will,  the  unquestionable  rule  of  law  is  that  the  will  must 
refer  to  a  paper  as  existing  at  the  time,  and  then  that  the  reference 
must  be  in  such  terms  that  the  paper  referred  to  can  be  fairly  recog- 
nized. Now  this  will  does  not  refer  to  an  existing  paper  at  all.  It  is 
said  very  truly  that  the  language  of  the  will  is  future,  and  points  to  a 
future  document;  and,  further,  the  document  which  is  asked  to  be 
incorporated  refers  to  the  fact  that  the  testatrix  intended  to  write  such 
a  paper,  and  it  then  goes  on  to  say  that  this  is  the  document  which 
she  so  intended.  It  is  quite  plain  therefore  that  the  document  referred 
to  in  the  will  was  of  a  future  character.  But  then  comes  the  codicil. 
In  The  Goods  of  Lady  Truro,  35  Law  J.  Rep.  (N.  S.)  Prob.  &  M.  89, 
1  Law  Rep.  Pr.  &  Div.  201,  it  was  decided  that  the  effect  of  a  codicil 
was  to  make  the  will  speak  as  if  executed  on  the  date  of  the  codicil, 
but  that  is  all.  It  was  there  said,  "Where  the  will,  if  treated  as  exe- 
cuted on  the  date  of  the  codicil  and  read  as  speaking  at  that  date, 
contains  language  which,  within  the  rule  of  Allen  v.  Maddock    11 


348  LAST   WILLS   AND   TESTAMENTS.  (Part   1 

Moo.  P.  C.  437,  would  operate  as  an  incorporation  of  the  document 
to  which  it  refers,  testamentary  effect  may  be  given  to  such  document. 
But  when  this  is  not  the  case,  the  mere,  fact  of  unexecuted  papers 
having  been  written  or  signed  between  the  date  of  the  will  and  that  of 
the  codicil,  will  not  suffice  to  add  such  papers  to  the  will  by  force  of 
republication,  or  to  make  that  testamentary  which  would  not  have 
been  so,  if  the  will  had  been  originally  executed  at  the  later  date." 

But  the  language  of  this  instrument,  read  it  as  you  will,  is  languac:2 
of  a  future  character,  and  therefore  it  seems  to  me  that  it  cannot  fall 
within  the  rule  laid  down  in  the  case  to  which  I  have  referred.  It  is 
quite  true  that  the  effect  of  the  codicil  is  to  bring  down  the  will  to 
that  date,  and  that  the  codicil  speaks  of  leaving  certain  jewels  "as 
intimated  in  the  letter  addressed  to  my  residuary  legatees ;"  but  then 
the  language  is  ambiguous.  It  might  point  to  an  existing  paper,  but 
it  might  also  point  to  a  future  paper,  and  the  testatrix  herself,  when 
she  was  obviously  speaking  of  a  future  paper  in  the  will,  used  similar 
language — "the  other  portion  to  be  given  to  my  residuary  legatees,  to 
be  appropriated  by  them  as  specified  in  my  letter."  The  court  cannot 
see  on  the  face  of  the  will  or  codicil  any  distinct  reference  to  an  exist- 
ing document,  and  still  less  that  these  documents  existed  at  the  time 
of  their  execution.  Under  these  circumstances,  the  court  can  only 
grant  probate  of  the  will  and  codicil.' 

e  Rut  see  Shaw  v.  Camp,  163  111.  144,  45  N.  B.  211,  36  L.  R.  A.  112  (1896). 
In  that  case  a  sheet  of  testator's  writing  making  an  aclrlitionr.l  bequest  was 
attached  by  testator  to  the  will  after  the  will  was  attested.  Still  later  testa- 
tor duly  executed  a  codicil  to  his  will.  That  codicil  did  not  refer  to  the  at- 
tached sheet  but  did  refer  to  the  will.  It  was  held  that  the  codicil  made 
the  attached  sheet — designated  in  the  case  as  "Sheet  B" — part  of  the  will. 
The  court  said  (168  111.  148,  45  N.  E.  212,  36  L.  R.  A.  112) :  "The  authorities 
fully  sustain  the  position  that,  if  'sheet  B'  was  attached  to  the  original  will 
at  the  time  the  codicil  was  signed  and  attested,  the  execution  of  the  codicil 
operated  as  a  publication  of  it,  and  a  Kepublication  of  the  whole  will  as  it 
then  existed;  also,  that  the  condition  of  the  instrument  at  that  time,  and 
what  the  testator's  intention  was  as  to  what  should  constitute  his  will,  might 
properly  be  shovvm  bv  parol.  Burge  v.  Hamilton,  72  Ga.  .^68  (1884) ;  Beall 
V.  Cunningham,  3  B.  Mon.  [Ky.]  390.  39  Am.  Dec.  469  (1843);  Van  Cortlandt 
T.  Kip,  1  Hill  [N.  Y.]  590  (1841)  ;  Mooers  v.  White,  6  Johns.  Ch.  [N.  Y.]  ?>(>0 
(1822) ;  1  Redfield  on  Wills,  2,S8.  The  Jury  were  justified  by  the  evidoTice 
in  finding,  that  the  testator  wrote  and  attached  'sheet  B'  to  the  original 
prior  to  the  execution  of  the  codicil.  That  being  so,  the  reference  by  the 
codicil  to  the  will  was  also  a  reference  to  that  sheet.  *  *  *  The  true 
will  of  deceased  Included  'sheet  B,'  and  the  circuit  court  properly  exercised 
its  .jurisdiction  In  establishing  it  as  such."  Yet  in  Hunt  v.  Evans.  134  111. 
496,  25  N.  E.  579,  11  L.  R.  A.  185  (1890),  where  in  a  will  a  testator  declared 
that  he  had  deeded  certain  property  in  trust,  and  the  statement  was  held  not 
to  incorporate  a  deed  of  trust  prepared,  but  not  executed,  the  court  had 
said  (134  111.  504,  25  N.  E.  581,  11  L.  R.  A.  185) :  "One  instrument  cannot 
be  engrafted  into  another,  and  become  a  part  thereof,  unless  the  language 
used  manifests  an  intention  that  such  shall  be  done."  Compare  Goods  of 
Heath,  [1892]  P.  253 ;   Notes  t.  Doyle,  32  App.  D.  O.  413  (1909). 


Ch.  8)  THE    ftBPDBLJCATION    AND    REVIVAL.   OF    WILLS.  349 

In  re  GOODS  OF  SMART. 
(High  Court  of  Justice,   Probate  Division.     [1902]  P.  238.) 
See  ante,  p.  208,  for  a  report  of  the  case. 


In  re  EMMONS'  WILL. 

(Supreme  Court,  Appellate  Division,  First  Department,  1906.     110  App.  Div. 

701,  96  N.  Y.  Supp.  506.) 

Houghton,  J.  Frederick  L.  Emmons  attempted  on  the  30th  day 
of  December,  1902,  to  execute  his  holographic  will.  The  paper  is  very 
informal,  and  makes  his  mother  the  sole  legatee  and  devisee;  no  exec- 
utor being  appointed.  It  was  signed  by  him,  and  published  and  de- 
clared as  his  last  will  and  testament,  in  the  presence,  however,  of 
only  one  witness,  whose  signature  is  the  only  one  appearing  thereto. 
Oi  the  death  of  the  alleged  testator  this  instrument  was  found  in  his 
safety  deposit  box,  with  other  papers  belonging  to  him.  On  the  16th 
day  of  May,  1904,  the  decedent  properly  executed  what  is  stated  there- 
in to  be  a  "codicil  to  my  last  will  and  testament,  bearing  date , 

190 — ."  The  only  provision  of  this  last  instrument,  in  addition  to  the 
naming  of  executors  of  it  and  the  former  alleged  will,  is  a  bequest  of 
$10,000  to  the  intestate  of  respondent  Baruch.  The  attestation  clause 
and  the  testimony  of  the  subscribing  witnesses  show  that  it  was  pub- 
lished as  a  codicil  to  the  alleged  last  will  and  testament.  The  execu- 
tors named  presented  both  instruments  for  probate.  The  appellant 
filed  contesting  allegations  to  the  efifect  that  the  former  paper  should 
not  be  admitted  to  probate  because  it  was  not  attested  in  conformity 
with  the  statute  as  a  last  will  and  testament,  and  that  the  latter  paper 
should  not  be  admitted  to  probate  because  it  was  not  complete  in  it- 
self, and  only  purported  to  be  a  codicil  to  a  will  which  was  invalid. 
The  learned  surrogate  felt  constrained  to  admit  both  papers  to  pro- 
bate, and  from  such  decree  this  appeal  is  taken. 

The  theory  of  the  respondents  is  that  the  properly  probated  and  exe- 
cuted codicil,  referring  to  the  defectively  executed  will,  validated  it 
and  incorporated  it  in  the  latter  instrument,  so  that  both  were  entitled 
to  probate.  Many  English  decisions,  and  those  of  many  of  our  sister 
states,  give  support  to  the  proposition  that  extraneous  unattested  docu- 
ments may  be  incorporated  into  a  will  by  proper  reference  thereto.  In 
this  state,  however,  that  doctrine  does  not  prevail,  and  the  rule  is  that 
no  testamentary  provision  in  other  unexecuted  or  unattested  papers 
can  be  incorporated  into  a  will.  Cook  v.  White,  43  App.  Div.  388,  60 
N.  Y.  Supp.  153,  affirmed  167  N.  Y.  588,  60  N.  E.  1109 ;  Matter  of 
the  Will  of  O'Neil,  91  N.  Y.  516 ;  Matter  of  Conway,  124  N.  Y.  455, 
460,  26  N-  E.  1028,  11  L.  R.  A.  796.  In  the  Matter  of  Andrews,  43 
App.  Div.  394,  60  N.  Y.  Supp.  141,  the  question  was  elaborately  dis- 


350  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

cussed,  opinions  being  written  by  four  of  the  judges  taking  part  in 
the  decision,  and  one  of  the  dissenting  opinions  was  written  in  the 
expressed  hope  that  the  Court  of  Appeals  might  be  attracted  to  a  re- 
newed consideration  of  the  question  and  a  modification  of  the  rule. 
Such  was  not  the  result,  however,  for  that  decision  was  unanimously 
affirmed  (162  N.  Y.  1,  56  N.  E.  529,  48  L.  R.  A.  662,  76  Am.  St.  Rep. 
294),  and  on  review  of  the  authorities  the  doctrine  was  reiterated. 

The  rule,  however,  does  not  extend  to  a  will  properly  executed,  and 
which  has  been  rendered  inoperative  by  law,  as  by  marriage  of  a 
woman  (Brown  v.  Clark,  77  N.  Y.  369),  or  to  one  which  was  executed 
while  the  testator  was  of  unsound  mind  or  under  restraint  (Cook  y. 
White,  supra).  In  such  case  the  instrument,  properly  executed  in 
form,  may  be  revived  and  validated  by  the  proper  execution  of  a  codi- 
cil referring  to  such  instrument,  or  made  for  that  purpose.  Nor  does 
the  rule  infringe  upon  the  doctrine  of  revivor  and  republication  of  a 
validly  executed  will  by  the  due  execution  and  publication  of  a  valid 
codicil.    Matter  of  Campbell,  170  N.  Y.  84,  62  N.  E.  1070. 

The  prior  instrument  executed  by  the  decedent  was  not  a  will,  for 
it  lacked  the  attestation  of  the  two  witnesses  required  by  statute,  and, 
being  therefore  unexecuted  and  unattested,  it  could  neither  be  revived 
by,  nor  incorporated  into,  the  subsequently  validly  executed  testamen- 
tary instrument  denominated  a  "codicil."  It  is  unfortunate  that  pro- 
bate must  be  denied  this  instrument.  The  deceased  desired  and  at- 
tempted to  give  all  his  property  to  his  mother.  He  was  perfectly  com- 
petent to  decide  to  whom  he  would  give  his  property,  and  there  is  no 
suggestion  that  there  was  any  other  will,  or  that  the  paper  produced 
was  not  the  one  to  which  he  referred  in  his  codicil,  notwithstanding  the 
fact  it  is  not  identified  by  exact  date.  The  remarks  of  the  court  in 
Matter  of  Andrews,  162  N.  Y.  1,  56  N.  E.  529,  48  L.  R.  A.  662,  76 
Am.  St.  Rep.  294,  are  peculiarly  applicable  to  the  present  situation: 
"It  is  undoubtedly  true  that  from  time  to  time  an  honest  attempt  to 
execute  a  last  will  and  testament  is  defeated  by  failure  to  observe 
some  one  or  more  of  the  statutory  requirements.  It  is  better  that  this 
should  happen  under  a  proper  construction  of  the  statute  than  that 
the  individual  case  should  be  permitted  to  weaken  those  provisions 
calculated  to  protect  testators  generally  from  fraudulent  alterations 
of  their  wills." 

The  question  remains  to  be  considered  whether  the  instrument  de- 
nominated a  "codicil"  should  also  be  denied  probate.  It  was  undoubt- 
edly the  intention  of  the  testator  that  this  instrument  should  operate 
in  connection  with  the  will  which  he  supposed  he  had  executed,  and 
that  it  should  be  an  addition  thereto.  That  his  intention  failed  in  this 
respect,  however,  does  not  defeat  the  instrument  The  distinguishing 
feature  of  a  will  is  that  it  shall  take  effect  upon  death,  and  the  name 
by  which  it  is  called  is  immaterial.  Matter  of  Probate  of  Will  of  Diez, 
50  N.  Y.  88.  A  codicil  may  modify  the  provisions  of  a  will  or  super- 
sede them  entirely,  or  simply  add  to  the  disposition  by  introducing 


Ch.  8)       THE  REPUBLICATION  AND  REVIVAL  OF  WILLS.         351 

new  beneficiaries.  A  validly  executed  will  may  have  been  lost  and  be 
incapable  of  proof,  and  yet  the  codicil,  so  far  as  it  goes,  is  operative. 
Newcomb  v.  Webster,  113  N.  Y.  191,  21  N.  E.  77.  A  codicil  exe- 
cuted according  to  the  formalities  of  the  statute  is  a  final  testamentary 
disposition,  and,  if  there  be  an  existent  and  complete  will,  it  takes  it 
up  and  incorporates  it.  Matter  of  Campbell,  170  N.  Y.  84,  63  N.  E. 
1070.  If,  however,  there  be  no  such  existent  and  validly  executed  will, 
and  if  the  codicil  be  so  complete  in  itself  as  to  be  capable  of  execution, 
then  it  must  necessarily  stand  and  be  given  the  force  of  valid  testa- 
mentary disposition. 

The  codicil  in  question,  so  far  as  it  goes,  is  entirely  complete.  The 
carrying  out  of  its  provisions  in  no  sense  depends  upon  the  will  to 
which  it  attempts  to  refer.  It  simply  carves  out  of  the  estate  a  legacy, 
and  bequeaths  it  to  an  individual  capable  of  taking.  Besides,  the  in- 
strument appoints  executors  of  the  testator's  estate.  If  it  contained 
no  other  provision,  this  would  alone  entitle  it  to  probate.  Matter  of 
Davis,  105  App.  Div.  221,  93  N.  Y.  Supp.  1004;  Id.,  182  N.  Y.  468, 
75  N.  E.  530. 

The  decree  appealed  from,  in  so  far  as  it  admits  to  probate  the  paper 
dated  December  30,  1902,  must  be  reversed,  and  in  all  other  respects 
affirmed,  without  costs  to  either  party  as  against  the  other.  All  con- 
cur.' 


In  re  PLUMEL'S  ESTATE. 

(Supreme  Court  of  California,  1907.    151  Cal.  77,  90  Pac.  192,  121  Am.  St 

Rep.  100.) 

See  ante,  p.  215,  for  a  report  of  the  case. 

7  See  note  to  Bryan's  Appeal,  ante,  p.  211.     In  Sharp  v.  Wallace,  83  Ky. 

584  (188G),  the  court  held  that  a  signed,  but  unattested,  will  not  in  the  hand- 
WTiting  of  the  testator  could  not  be  incorporated  and  validated  by  an  un- 
witnessed holographic  will.  But  see  In  re  Sober,  78  Cal.  477,  21  Pac.  8  (1889), 
and  In  re  Plumel,  ante,  p.  215.  In  Sawyer  v.  Sawyer,  52  N.  C.  134  (1859), 
where  a  holographic  will  was  revoked  by  the  marriage  of  the  testator,  and 
an  attempt  was  made  to  show  an  oral  revival  and  republication,  the  court  said 
(pages  139,  140):  "It  seems  to  us  clear,  as  a  necessary  consequence  of  the 
provision  of  our  statute,  that  a  subsisting  holograph  will  cannot  be  repub- 
lished, much  less  can  a  revoked  holographic  will  be  revived  and  republished, 
by  verbal  declarations,  'however  explicit  and  earnest.'  If  an  attested  devise 
cannot  be  republished,  or  be  revived  and  republished,  except  by  a  written 
instrument,  attested  in  the  manner  required  by  the  statute  of  frauds,  in  re- 
gard to  the  execution  and  revocation  of  devises,  it  follows  by  precise  analogy 
that  a  holograph  will  cannot  be  republished,  or  revived  and  republished,  ex- 
cept by  a  written  instrument  attested  as  required  by  the  statute  of  frauds, 
or  by  "a  holograph,  verified  in  the  manner  required  by  our  statute  in  regard 
to  the  execution  and  revocation  of  such  wills.  So  our  conclusion  is  that  h 
holograph  will  revoked  by  the  marriage  of  the  testator  can  only  be  revived 
and  republished  by  a  written  instrument  setting  forth  his  intention,  duly 
attested  by  two  witnesses,  or  written  by  the  testator  himself  and  found 
among  his  valuable  papers,  or  handed  to  one  for  safe  keeping."  See,  also, 
passage  from  Da  Rue  v.  Lee,  G3  W.  Va.  388,  60  S.  E.  388,  390,  14  L.  R.  A. 
(N.  S )  968  (1908),  quoted  in  the  note  to  Milam  v.  Stanley,  ante,  p.  94. 


352  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

CROSBIE  V,  MacDOUAI^. 
(High  Court  of  Chancery,  1799.    4  Ves.  610.) 

Master  of  the  Rolls  [Sir  Richard  Pepper  Arden]."  When  this 
case  was  stated,  I  had  no  doubt  upon  it;  and  the  Solicitor  General 
has  not  been  able  to  succeed  in  applying  that  case  upon  Lord  Orford's 
will  [3  Ves.  Jr.  402],  upon  the  authority  of  which  alone  he  rests,  to 
this.  I  shall  give  my  opinion  at  present,  having  very  little  doubt; 
and  if  upon  reading  that  case  I  see  any  reason  to  alter  that  opinion, 
I  will  mention  it  on  Monday. 

The  testator  by  his  will  gives  two  annuities  to  Sarah  Crosbie.  By 
the  fourth  codicil  he  revokes  those  annuities.  Two  days  after  the 
execution  of  that  codicil,  it  is  said  (but  that  I  lay  totally  out  of  the 
case;  for  I  cannot  say  two  days  will  furnish  a  presumption  that  four 
days  or  ten  days  would  not  furnish)  but  two  days  after  the  execution 
of  the  fourth  codicil,  the  testator  makes  a  fifth,  expressly  calling  it  a 
codicil  to  his  will,  by  which  he  substitutes  one  executor  for  another, 
and  then,  in  the  common  way,  quite  unnecessarily,  he  declares,  that  is 
the  only  point  in  which  he  makes  any  alteration  in  the  will ;  for  that 
is  the  real  meaning  of  those  words — that  having  altered  his  will  in 
one  respect,  he  means  to  alter  it  in  no  other.®  The  question  then  is, 
whether  the  fourth  codicil,  so  far  as  it  is  inconsistent  with  the  will,  is 
revoked  in  consequence  of  this  reference  by  the  fifth  to  the  will,  which 
indeed  is  the  case  of  every  codicil,  which  must  refer  to  some  will,  the 
last  in  date,  if  no  express  date  is  mentioned;  if  there  is,  that  of  the 
particular  date  expressed. 

The  case  upon  Lord  Orford's  will  only  determines  that  a  codicil, 
referring  to  a  former  will  as  the  last  will,  cancels  intermediate  wills. 
But  the  point  contended  in  this  case  is,  that  it  sets  up  all  the  will 
against  a  codicil  revoking  it  in  part.  That  case  will  not  by  any  means 
bear  out  that  argument.  It  is  perfectly  true  that,  if  a  man  ratifies 
and  confirms  his  last  will,  he  ratifies  and  confirms  it  with  every  codicil 
that  has  been  added  to  it.  There  is  a  great  distinction  between  wills 
and  codicils  in  this  respect.  If  there  are  two  separate  papers,  both 
called  wills,  inconsistent  with  each  other,  it  is  not  the  rule  to  prove 
both  in  the  Ecclesiastical  Court.  The  last  is  the  will.  From  the  na- 
ture of  the  instrument,  it  revokes  the  other.  If  the  last  purports  to 
be  the  whole  will,  a  complete,  substantive  will,  they  do  not,  I  conceive, 
prove  both.  Unless  there  is  something  to  show  it  was  meant  to  be 
coupled  with  another  instrument,  it  is  not  taken  to  be  a  codicil.  But 
if  it  does  purport  to  be  coupled  with  another  instrument,  it  is  as  much 

«  The  statement  of  facts  Is  omitted. 

»  The  words  of  the  fifth  codicil  here  referred  to  constituted  the  conclud- 
ing sentence  of  the  codicil  and  were:  "And  I  do  hereby  confirm  my  said 
will  in  all  other  respects." 


Ch.  8)  THE    RES'UBLICATION    ANI>    REVIVAL    OF    WILLS.  353 


10 


a  part  of  that  instrument  as  if  it  was  written  upon  the  same  paper 
Many  absurdities  would  follow  from  the  contrary  construction.  Sup- 
pose the  testator  had  by  his  will  given  a  legacy  of  £300,  and  by  a  codi- 
cil had  given  the  legatee  £100  instead  of  the  £200,  and  then  should 
make  another  codicil,  of  this  sort,  merely  changing  an  executor,  and 
ratifying  and  confirming  his  will  in  all  other  respects.  Is  the  legatee 
to  have  both  the  £200  and  the  £100?    That  must  be  contended. 

The  true  rule  upon  the  subject  appears  to  me  to  be  as  I  have  stated. 
The  Solicitor  General  confesses  that,  if  it  was  not  for  the  case  of  Lord 
Walpole  V.  Lord  Orford  [supra],  he  should  scarcely  have  been  able  to 
argue  it;  but  he  thinks  that  case  affords  him  a  sufficient  ground.  It 
dift'ers  in  this  essential  point.  There  was  no  question  in  that  case  upon 
a  will  and  a  codicil.  The  question  was  upon  two  inconsistent  wills — 
one  made  in  1752,  the  other  in  1756.  The  second  has  destroyed  the 
first,  unless  the  testator  thought  fit  to  revive  it;  By  a  codicil  in  1776, 
he  expressly  declares  it  to  be  a  codicil  to  his  last  will  and  testament, 
dated  the  25th  of  November,  1752.  That  was  held  to  cancel  the  in- 
termediate will.  All  that  the  courts  of  law,  first  the  Court  of  Common 
Pleas,  and  afterwards  the  Court  of  King's  Bench,  determined,  was, 
that  evidence  could  not  be  admitted  to  prove  the  mistake,  and  that 
the  testator  did  not  mean  to  refer  to  the  will,  to  which  the  codicil  did 
expressly  refer.  It  was  said  that  it  really  arose  from  the  mistake  of 
the  person  employed  to  draw  the  codicil,  who  took  the  wrong  will. 
Both  the  courts  of  law  were  of  opinion  they  could  not  receive  evi- 
dence of  that;  as  the  testator  had  solemnly  declared,  the  will  of  1753 
was  his  last  existing  will.^^  It  would  not  at  all  affect  the  case  of  any 
codicil  made  as  an  appendix  to  either  of  his  two  wills.  If  the  will  had 
dropped,  perhaps  a  codicil,  professedly  a  codicil  to  that  will,  would 
have  dropped  with  it.  That  might  have  been  a  nice  question — wheth- 
er a  codicil,  which  in  words  referred  only  to  the  will  of  1756,  would 
not  have  fallen  with  that  will.  I  will  look  into  that  case  before  Mon- 
day ;   and  if  I  see  any  reason  to  alter  my  opinion,  I  will  mention  it. 

Declare,  that  the  annuities  of  £200  and  £300,  given  by  the  will  to 
Sarah  Crosbie,  were  and  remain  revoked  bv  the  fourth  codicil 

The  case  was  not  mentioned  agam. 

loThat  a  codicil,  to  be  effective,  need  not  be  physically  attached  to  the  will, 
see  14  Am.  &  Eng.  Ann.  Cas.  472,  note. 

1 1  In  In  the  Goods  of  Lady  Isabella  Gordon,  [1892]  P.  228,  where  by  mistake 
a  codicil  executed  in  1891  stated  that  it  was  a  codicil  to  a  will  of  1887,  which 
■was  revoked  by  a  will  of  1889,  the  will  of  1889,  and  the  codicil  of  1891  with 
the  reference  to  the  will  of  1887  omitted,  were  admitted  to  probate.  Seer 
also.  In  the  goods  of  Alfred  Reade,  [1902]  P.  75. 

Cost.  Wills— 23 


354  LAST  WILLS  AND  TESTAMENTS.  (Part  1 

GREEN  V.  TRIBE. 
(High  Court  of  Justice,  Chancery  Divisiou,  1878.     9  Ch.  D.  231.) 

Elizabeth  Love,  by  her  will  dated  the  9th  of  February,  1872,  gave 
to  trustees  the  sum  of  £1,000  upon  trust  to  invest  the  same,  and  to 
pay  the  income  to  her  niece,  Ellen  Love,  during  her  life,  and  after  her 
decease  upon  trust  for  her  children  as  therein  mentioned.  And  the 
testatrix  devised  her  residuary  real  estate  to  trustees  on  trust  for  sale, 
and  gave  to  the  same  trustees  the  residue  of  her  personal  estate,  and 
the  proceeds  of  the  sale  of  her  said  real  estate,  upon  trust  as  to  two 
sixteenths  thereof  to  pay  the  same  unto  her  nephew  Stephen  Love, 
and  as  to  two  other  sixteenths  thereof  upon  such  trusts  for  the  benefit 
of  her  niece  Ellen  Love  and  her  issue  as  were  therein  declared  of  the 
said  sum  of  £1,000-  bequeathed  for  her  benefit. 

Elizabeth  Love  made  a  codicil  dated  the  27th  of  August,  1872,  as 
follows :  "This  is  a  codicil  to  the  last  will  and  testament  of  me,  Eliza- 
beth Love,  of  Filstone,  in  the  parish  of  Shoreham,  in  the  county  of 
Kent,  spinster,  which  will  bears  date  the  9th  of  February,  1872.  I  do 
hereby  revoke  and  make  void  every  gift,  devise,  appointment,  and  be- 
quest made  by  me  in  and  by  my  said  will  to  or  in  favor  of  my  niece 
Ellen  Love  and  my  nephew  Stephen  Love  respectively.  I  confirm  my 
said  will  in  all  other  respects." 

Elizabeth  Love  made  a  second  codicil  dated  the  14th  of  April,  1873, 
as  follows :  "This  is  a  codicil  to  the  last  will  and  testament  of  me,  Eliz- 
abeth Love,  of  the  parish  of  Shoreham,- in  the  county  of  Kent,  spinster. 
Whereas  since  the  date  of  my  said  will  I  have  purchased  two  mes- 
suages with  the  outbuildings,  gardens,  and  premises  thereto  belonging, 
situate  and  being  Nos.  5  and  6,  Camden  Villa,  London  Road,  in  the 
parish  of  Sevenoaks,  in  the  county  of  Kent.  And  I  have  contracted 
to  purchase  two  other  messuages  with  the  outbuildings,  gardens,  and 
premises  thereto  belonging,  situate  and  being  Nos.  9  and  10  Granville 
Road,  in  the  said  parish  of  Sevenoaks,  but  the  purchase  whereof  has 
not  yet  been  completed.  Now  I  devise  the  said  four  messuages  and 
premises  respectively,  with  the  appurtenances  and  all  other  the  real 
estate,  if  any,  which  I  have  acquired  or  contracted  to  purchase  since 
the  date  of  my  said  will  unto  my  brother  Samuel  Love,  my  brother-in- 
law  John  Tribe,  my  nephew  Frank  Green,  and  William  Francis  Hol- 
croft,  the  trustees  and  the  executors  named  in  my  said  will,  and  to 
their  heirs,  to,  upon,  and  for  the  several  uses,  trusts,  intents,  and  pur- 
poses in  my  said  will  expressed  and  contained  of  and  concerning  my 
residuary  real  estate  (other  than  the  messuage,  cottage,  and  premises 
thereby  devised  to  my  said  brother  Samuel  Love  for  his  life  as  therein 
mentioned).  And  I  declare  that  the  produce  of  the  sales  of  the  mes- 
suages and  hereditaments  hereby  devised  as  aforesaid  shall  fall  into 
and  form  part  of  my  residuary  and  personal  estate  thereby  bequeathed 
and  shall  be  divided  in  the  same  proportions  and  for  the  benefit  of 


Ch.  8)  THE    REPUBLICATION    AND    REVIVAL    OF    WILLS.  355 

the  same  parties  as  in  my  will  is  expressed  and  declared  of  and  con- 
cerning my  said  residuary  personal  estate,  and  that  each  share  respec- 
tively shall  be  subject  to  the  same  trusts,  restrictions,  and  limitations 
over  in  all  respects  as  the  original  share  thereby  bequeathed,  and  as  if 
the  share  hereby  bequeathed  had  actually  formed  part  of  my  said  re- 
siduary personal  estate  disposed  of  by  my  said  will.  In  other  respects  I 
confirm  my  said  will." 

Elizabeth  Love  died  in  September,  1873,  and  this  action  was  brought 
for  the  administration  of  her  estate.  Two  of  the  questions  argued  on 
the  hearing  were,  whether  the  second  codicil  revoked  the  first  codicil ; 
and  if  not,  whether  the  messuages  comprised  in  the  second  codicil 
would  go  according  to  the  terms  of  the  residuary  devise  in  the  will 
alone,  in  which  case  Stephen  Love  and  Ellen  Love  would  take  each 
two  sixteenths,  or  would  go  according  to  the  will  and  first  codicil 
together,  in  which  case  Stephen  Love  and  Ellen  Love  would  take 
nothing. 

P'ry,  J.  It  appears  from  the  statements  made  by  the  plaintiff,  which 
are  not  disputed  by  the  defendants,  that  the  purchase,  a  recital  of 
which  is  contained  in  the  second  codicil,  had  been  made  by  the  testa- 
trix after  the  9th  of  February,  1872,  the  date  of  her  original  will,  but 
before  the  27th  of  August,  1872,  the  date  of  her  first  codicil.  This 
being  so,  it  appears  to  me  that  the  second  codicil  must  be  read  as  if 
the  last  will  and  testament  there  referred  to  had  been  described  by  its 
proper  date,  and  as  if  the  testatrix  had  declared  that  the  second  codicil 
was  a  codicil  to  her  last  will  and  testament  of  the  9th  of  February, 
1872. 

Upon  this  state  of  facts  two  questions  have  been  raised  before  me, 
First,  did  the  second  codicil  revoke  the  first  codicil,  and  revive  the 
original  will  in  all  its  dispositions,  and  consequently  restore  Ellen 
Love  and  Stephen  Love  to  the  position  of  legatees  under  that  will? 
Secondly,  if  this  were  not  the  case,  was  the  real  estate  specifically 
mentioned  in  the  second  codicil  devised  upon  the  terms  of  the  original 
will  unaffected  by  the  second  codicil  ? 

Both  these  questions  must  be  determined  by  the  answer  to  a  third 
question,  which  is  this :  Assuming  a  testator  to  have  made  a  will,  to 
have  made  a  first  codicil  modifying  that  will,  to  have  made  a  second 
codicil  describing  his  will  by  the  date  which  the  original  instrument 
bore,  and  confirming  that  will,  but  observing  an  absolute  silence  with 
regard  to  the  first  codicil,  what  is  the  effect  of  the  second  codicil? 
Does  it  revive  the  first  will  as  it  originally  stood,  or  does  it  confirm 
the  original  will  as  modified  by  the  first  codicil  ? 

The  general  principle  I  take  to  be  clear.  On  the  one  hand,  where  a 
testator  in  a  codicil  uses  the  word  "will"  abstractedly  from  the  con- 
text, it  will  refer  to  all  antecedent  testamentary  dispositions  which 
together  make  the  will  of  the  testator,  and  consequently  where  the 
testator  by  a  codicil  confirms  in  general  terms  his  Vn^III  or  his  last  will 
and  testament,  the  will,  together  with  all  codicils,  is  taken  to  have  been 


JJ56  LAST   WILLS  AND   TESTAMENTS.  (Part  1 

confirmed.  "The  will  of  a  man,"  said  Lord  Penzance  in  Lemage  v. 
Goodban,  Law  Rep.  1  P.  &  M.  57,  "is  the  aggregate  of  his  testamen- 
tary intentions  so  far  as  they  are  manifested  in  writing,  duly  executed 
according  to  the  statute."  On  the  other  hand,  it  is  equally  clear  that 
the  testator  may  by  apt  words  express  his  intention  to  revoke  any  codi- 
cil already  made,  and  to  set  up  the  original  will  unaffected  by  any 
codicil.  The  question,  therefore,  which  I  have  to  Consider  is,  whether 
the  reference  to  the  date  of  the  original  will  is  an  indication  of  the 
intention  to  deprive  all  instruments  other  than  the  original  will  itself 
of  any  force — in  face,  whether  such  a  reference  to  a  will  effects  a 
revocation  of  the  antecedent  codicils.  To  this  inquiry  a  series  of  cases 
appears  to  afford  a  clear  negative  answer. 

The  first  to  which  I  desire  to  refer  is  the  case  of  Crosbie  v.  Mac- 
doual,  4  Ves.  610.  There  the  testator  made  a  will  and  five  codicils, 
and  a' question  arose  as  to  the  effect  of  the  fifth  codicil  upon  the  fourth 
codicil,  by  which  certain  annuities  had  been  given.  The  fifth  codicil 
recited  the  making  of  the  will  and  the  date  which  it  bore,  substituted 
one  executor  in  the  place  of  another,  was  silent  as  to  all  antecedent 
codicils,  and  concluded  by  confirming  the  testator's  said  will  in  all 
other  respects.  The  then  Master  of  the  Rolls  held  that  the  fourth 
codicil  was  not  revoked  by  the  fifth.  This  decision  rested  upon  two 
propositions.  The  first,  that  if  a  man  ratifies  and  confirms  his  last 
will  he  ratifies  and  confirms  it  with  every  codicil  that  has  been  added 
to  it.  The  second,  that  the  ratification  of  a  will  described  by  its  date 
is  a  ratification  of  the  will  as  modified  by  the  codicils,  and  therefore 
does  not  revoke  the  codicils  which  were  made  between  the  date  of  the 
will  and  the  confirming  codicil. 

In  the  case  of  Smith  v.  Cunningham,  1  Add.  448,  a  similar  question 
arose.  There  the  testator  made  first  a  will,  then  five  codicils  in  suc- 
cession, then  a  sixth  codicil,  by  which  he  confirmed  and  republished 
his  will  and  two  codicils  describing  the  will,  and  two  codicils  by  the 
dates  which  they  respectively  bore,  and  it  was  held  that  the  sixth  codi- 
cil did  not  effect  a  revocation  of  the  three  unmentioned  codicils.  The 
court  held,  in  the  first  place,  that  the  intention  to  revoke  must  be  clear 
and  unequivocal ;  in  the  second  place,  that  no  clear  inference  in  favor 
of  the  revocation  arose  from  the  language  of  the  sixth  codicil ;  and, 
thirdly,  that,  looking  at  all  the  circumstances  to  ascertain  the  intention 
of  the  testator  as  to  what  instruments  should  operate  as  and  compose 
his  last  will,  as  the  Court  of  Probate  was  in  the  habit  of  doing  (Gree- 
nough  V.  Martin,  2  Add.  239),  there  was  no  intention  to  revoke. 

In  In  the  Goods  of  De  la  Saussaye,  Law  Rep.  3  P.  &  M.  42,  a  case 
which  came  before  Sir  James  Hannen  in  the  year  1873,  a  similar  point 
arose.  The  testator  there  first  made  a  will,  he  then  made  three  codi- 
cils in  Spain,  he  then  made  a  codicil  in  England  by  which, he  revoked 
certain  dispositions  contained  in  his  will,  which  he  described  as  exe- 
cuted in  London  on  the  12th  of  March,  1869,  and  concluded  by  con- 
firming the  dispositions  contained  in  his  will  of  the  12th  of  March, 


Ch   8)  THE    REPUBLICATION    AND    REVIVAL    OF    WILLS.  357 

1869,  in  whatever  did  not  clash  or  interfere  with  the  contents  of  that 
codicil.  The  question  arose  whether  the  express  referencp  to  the  will 
of  the  12th  of  March,  1869,  implied  an  intention  on  the  part  of  the 
testator  to  revoke  his  Spanish  codicils.  The  court  held  that  it  did  not, 
on  the  ground  that  those  codicils  were  to  be  deemed  parts  of  the  will, 
and  were  themselves  confirmed  by  the  ratification  of  the  will  of  which 
they  were  modifications. 

In  each  of  the  cases  which  I  have  hitherto  considered,  as  well  as  in 
the  case  before  me,  the-  earlier  codicil  in  question  had  a  force  of  its 
own.  It  must  prevail  unless  it  be  revoked  by  the  subsequent  codicil. 
But  there  is  a  class  of  cases  closely  akin  to  those  I  have  been  consid- 
ering, but  different  in  this  respect,  that  in  them  the  earlier  codicil  has 
no  proper  vigor  of  its  own,  but  derives  its  force,  if  at  all,  from  the 
later  codicil.  The  cases  of  the  latter  class  are  not  uniform.  First  in 
point  of  date  comes  Gordon  v.  Lord  Reay,  5  Sim.  274;  there  the 
testator  made  a  charge  on  real  estate  by  an  unattested  codicil,  and  by 
a  subsequent  codicil  referred  to  his  will  by  its  date,  and  confirmed  his 
will;  and  the  Vice-Chancellor  of  England  held  that  the  first  codicil 
was  a  part  of  the  will,  that  the  second  codicil  was  a  republication  of 
the  will,  and  consequently  of  the  first  codicil  which  was  a  part  of  it. 
In  the  case  of  Aaron  v.  Aaron,  3  Dc  G.'  &  Sm.  475,  the  testator  duly 
made  a  will ;  he  then  made  a  codicil  not  duly  attested  varying  the  dis- 
positions of  his  will ;  he  then  duly  made  a  second  codicil  by  which  he 
recited  that  he  had  duly  made  and  executed  a  will  and  codicil,  describ- 
ing them  by  their  respective  dates,  and  then,  after  certain  modifica- 
tions in  his  will,  ratified  and  confirmed  his  "said  will"  in  all  other 
particulars  thereof,  saying  nothing  as  to  the  ratification  of  his  first 
codicil.  The  court  held  that  the  intention  of  the  second  codicil,  as 
collected  from  the  whole  of  it,  was  to  confirm  the  first  codicil  so  as  to 
give  effect  to  it  as  if  it  had  been  duly  attested  by  three  witnesses.  The 
recital  of  the  first  codicil  as  having  been  duly  executed  was  a  strong 
circumstance  in  this  decision. 

So  far  the  current  of  authority  seems  to  run  smoothly.  But  in  the 
recent  case  of  Burton  v.  Newbery,  1  Ch.  D.  234,  the  present  Master 
of  the  Rolls  took  a  different  view.  There  the  testator  made  a  will  be- 
fore the  Wills  Act,  under  which  A.  and  B.  took  shares  of  the  pro- 
ceeds of  his  real  estates.  By  a  codicil  made  after  the  Wills  Act,  he 
devised  subsequently  acquired  realty  on  the  trusts  of  his  will.  This 
codicil  was  attested  by  A.  and  B.,  who  consequently  were  incapable 
of  taking  their  shares  under  the  codicil.  By  a  second  codicil,  de- 
scribed as  a  codicil  to  his  will  dated  the  1st  of  April,  1839,  he  gave  a 
pecuniary  legacy,  and  said  nothing  as  to  his  first  codicil.  In  this  state 
of  facts  the  Master  of  the  Rolls  held  that  the  second  codicil  did  not 
operate  as  a  republication  of  the  first.  The  only  reference,  he  said,  was 
to  a  will  bearing  date  a  certain  day,  that  is,  as  I  understand  it,  to  a 
described  instrument  which  excludes  instruments  of  subsequent  dates. 
It  appears  to  me  that  the  Master  of  the  Rolls  intended  by  this  judg- 


358  I^AST   WILLS   AND   TESTAMENTS.  (Part  1 

ment  to  decide  only  that  wheie  recourse  is  had  to  a  subsequent  codicil 
to  give  vigor  to  an  earher  one,  a  mere  reference  to  the  will  by  its 
date  will  not  operate  upon  the  earlier  and  inoperative  codicil  so  as' to 
set  it  up,  and  that  he  did  not  intend  (as  has  been  argued  before  me) 
to  lay  down  that  the  confirmation  of  a  will  referred  to  by  its  date 
would  revoke  a  pre-existing  and  valid  codicil.  Accordingly,  I  find  him 
dissenting  from  the  case  of  Gordon  v.  Lord  Reay  [supra],  but  refer- 
ring without  disapproval  to  the  earlier  case  of  Crosbie  v.  Macdoual 
[supra]. 

The  two  classes  of  cases  differ  essentially.  In  the  one  the  earlier 
codicil'  has  a  proper  force  of  its  own ;  in  the  other  the  earlier  codicil 
must,  if  left  to  itself,  fail.  In  the  one  class  the  question  is,  does  the 
later  codicil  revoke  the  earher  and  operative  one;  in  the  other  class 
you  inquire,  does  the  later  codicil  set  up  the  earlier  and  inoperative 
one?  To  the  one  class  of  cases  the  principle  applies  that  a  clear  dis- 
position is  not  to  be  revoked  except  by  clear  words ;  to  the  other  class 
this  principle  has  no  application.  Doe  v.  Hicks,  8  Bing.  475 ;  Farrer 
V.  St.  Catherine's  College,  Law  Rep.  16  Eq.  19. 

I  conclude,  therefore,  that  the  decision  of  the  Master  of  the  Rolls 
in  Burton  v.  Newbery  does  not  touch  the  case  before  me,  and  was 
not  intended  to  touch  the  class  of  cases  to  which  it  belongs. 

The  case  of  Crosbie  v.  Macdoual  and  the  cases  which  have  followed 
it  appear  to  me  to  be  right  in  principle.  The  character  of  a  codicil 
is  very  peculiar.  Its  nature  is  not  substantive  but  adjective.  It  is,  as 
Mr.  Justice  Blackstone  describes  it  (2  Bl.  Com.  [Kerr's  Ed.]  450), 
"a  supplement  to  a  will,  or  an  addition  made  by  the  testator,  and 
annexed  to  and  to  be  taken  as  part  of  a  testament."  A  reference  to 
the  will  therefore  in  itself  carries  with  it  a  reference  to  that  which 
is  merely  a  supplement  to  or  annexed  to  the  will  itself;  and  the  mere 
fact  that  the  testator  describes  the  will  by  a  reference  to  its  original 
date,  does  not  seem  to  me  sufficient  to  exclude  the  inference  that  the 
will  referred  to  is  the  will  as  modified  by  the  codicils. 

This  peculiar  character  of  codicils  is  well  illustrated  by  two  cases  in 
the  ecclesiastical  courts.  In  the  case  of  Wade  v.  Nazer,  1  Rob.  Ecc. 
627,  the  testator  executed  first  a  will  and  then  a  codicil  and  then  re- 
executed  his  will,  and  it  was  held  that"  the  re-executed  will  took  effect 
subject  to  the  codicil,  on  the  ground  that  it  was  a  part  of  the  will 
which  was  so  re-executed.  In  the  case  of  Upfill  v.  Marshall,  3  Curt. 
636,  the  testator  made  a  will,  then  a  codicil,  altering  certain  of  its  dis- 
positions, and  then  republished  his  will.  It  was  held  that  the  codicil 
was  not  revoked  by  the  republication  of  the  original  will,  and  that  for 
the  same  reason  the  codicil  was  a  part  of  the  republished  will. 

One  other  argument  remains  for  consideration.  According  to  the 
construction  which  I  place  upon  the  second  codicil,  the  property  ex- 
pressed to  be  devised  by  it  passed  in  sixteen  shares  in  accordance  with 
the  will  of  the  testator.  I  cannot  yield  to  the  argument  pressed  upon 
me  that  even  if  the  first  codicil  was  not  revoked,  the  second  codicil 
passed  the  after-acquired  property  on  the  trusts  of  the  original  will. 


Ch.   8)  THE    REPUBLICATION    AND    REVIVAL   OF   WILLS.  359 

If  I  am  right  in  thus  holding,  the  codicil  operated  nothing,  unless  it  be 
held  to  have  restored  the  original  will  by  revoking  the  first  codicil,  in 
which  case  it  would  have  had  the  very  material  operation  of  restoring 
Ellen  Love  and  Stephen  Love  to  their  position  of  legatees.  The  codi- 
cil ought,  it  may  be  suggested,  to  be  construed  so  as  to  have  some 
effect,  and  there  being  no  other  effect  for  it,  it  ought  to  be  so  construed 
as  to  revoke  the  first  codicil,  and  thereby  admit  Ellen  Love  and  Ste- 
phen Love  to  the  benefit  of  the  original  dispositions  intended  for  them. 
This  argument  ought  not,  I  think,  to  prevail,  because  it  appears  to  mc 
to  be  at  variance  with  the  expressed  intentions  of  the  testatrix.  She 
recites  in  the  codicil  the  circumstance  which  induced  her  to  execute  it, 
namely,  the  purchase  of  property  since  the  date  of  her  will,  and  the 
contract  for  purchase  of  other  properties.  She  appears  to  have  thought 
that  this  rendered  it  desirable  to  execute  a  codicil  to  her  will,  but  it 
is  impossible  to  suppose  that  if  the  real  object  had  been  to  restore 
Ellen  Love  and  Stephen  Love  to  their  original  position  as  legatees, 
such  an  intention  would  not  have  been  hinted  at  in  the  recitals  which 
are  introduced  into  the  second  codicil  for  the  very  purpose  of  explain- 
ing its  object;  I  notice  the  argument,  therefore,  only  for  the  pur- 
pose of  rejecting  it. 

The  result  is,  that  in  my  judgment  the  second  codicil  was  absolutely 
inoperative.    The  will  and  first  codicil  must  take  effect  with 
the  whole  of  the  real  estate  of  which  the  testatrix  died 
whether  acquired  before  or  after  the  date  of  her  origin^io'^ll.^ 


In  re  CAMPBELl 

(Court  of  Appeals  of  New  York,  1902.    170  N.  Y.  84,  62  N.  E.  1070.) 

Gray,  J.  This  was  a  proceeding  for  the  probate  of  a  will  and  of  a 
codicil  of  Ellen  Campbell,  deceased,  and  it  therein  appeared  that  she 

12  See  McLeod  v.  McNab,  [1891]  A.  C.  471,  where  It  was  held  that,  while  a 
reference  in  a  codicil  to  a  will  by  date  was  not  sufficient  in  itself  to  exclude 
an  intermediate  codicil  which  revoked  a  particular  beqii^st  in  the  will,  yet  in 
the  case  at  bar  the  reference  would  do  that,  as  the  circumstances  and  the  oth- 
er language  in  the  codicil  showed  that  the  testator  did  intend  to  exclude  that 
intermediate  codicil.  ^     .  „     . 

In  Burton  v.  Newbery,  1  Ch.  D.  235  (1875),  gifts  were  made  m  a  first 
codicil  to  two  of  the  three  attesting  witnesses  and  to  others.  Later  a  second 
codicil  was  duly  executed,  which  referred  to  the  will  by  date,  but  did  not 
mention  the  first  codicil.  While  the  first  codicil  was  not  wholly  invalid,  be- 
cause the  Wills  Act  made  only  the  gifts  to  the  witnesses  void,  it  was  held, 
however,  that  the  void  gifts  under  the  first  codicil  were  not  validated  by 
the  second  codicil,  since  the  first  codicil  was  not  republished  by  the  second. 
But  quEere?     See  the  comment  on  Burton  v.  Newbery  in  the  principal  case. 

In  Anderson  v.  Anderson,  L.  R.  13  Eq.  Cas.  381  (1872).  the  will  made  a 
gift  to  the  husband  of  a  witness.  A  codicil  was  subsequently  made,  duly 
attested  by  other  -witnesses,  not  referring  specifically  to  the  gift  just  men- 
tioned, but  changing  the  terms  of  a  gift  to  another  person  and  confirming 
the  will  in  other  respects.  It  was  held  that  the  codicil  republished  the  will, 
and  made  valid  the  gift  to  the  husband  of  the  witness  to  the  will. 


360  LAST   WILLS   AND   TESTAMENTS.  (Part  1 

had  executed,  at  difierent  times,  and  there  were  existent,  two  wills 
and  a  codicil.  On  July  6,  1897,  one  will  was  executed;  on  July  19, 
1899,  another  will  was  executed  and  on  December  7,  1900,  an  instru- 
ment was  executed  by  the  testatrix,  which  declared  itself  to  be  a 
"codicil  to  the  last  will  and  testament  of  Miss  EUen  Campbell,  which 
will  bears  date  July  6,  1897."  The  will  of  1899  modified,  or  changed, 
the  provisions  of  the  will  of  July,  1897,  in  respects  relating  to  legacies 
given  and  in  giving  new  legacies.  Each  of  these  wills  was  executed 
with  the  requisite  statutory  formalities  and  contained  the  usual  revoca- 
tion clause.  The  codicil  of  1900  modified  some  provisions  of  the  will 
of  1897,  expressly  revoked  others  and  added  some  legacies.  It  made 
no  reference  to  the  will  of  1899.  The  will  of  1897  and  the  codicil 
thereto  of  1900  were  admitted  by  the  surrogate  to  probate,  as  consti- 
tuting the  last  will  and  testament  of  the  deceased;  while  the  will  of 
1899  was  refused  probate,  as  having  been  revoked.  The  conclusions 
of  the  surrogate  in  those  respects  were  unanimously  affirmed  by  the 
Appellate  Division  and  the  Home  for  Aged  Men,  a  legatee  under  the 
will  of  1899,  appeals  to  this  court  from  the  decision  below. 

Although  it  is  found  as  a  fact  by  the  learned  surrogate  that^the 
testatrix,  by  the  execution  of  the  codicil  in  1900,  republished  her  will 
of  July,  1897 ;  nevertheless,  the  finding  is,  in  its  nature,  a  legal  con- 
clusion from  the  facts  and  the  question  of  law  is  in  the  case.  It  is 
contended,  on  the  part  of  the  appellant,  that  the  statutory  provisions 
with  respect  to  the  destruction,  cancellation  and  revocation  of  a  will, 
are  applicable  to  the  present  case.  1  R.  S.  c.  6,  tit.  1,  art.  3,  §  53. 
They,  clearly,  are  not.  Whether  the  earlier  will  was  revived  by  the 
destruction  of  a  later  will  is  not  the  question ;  nor  does  the  validity 
of  testatrix's  action  with  respect  to  the  prior  will  depend  upon  verbal 
declarations,  as  in  the  Matter  of  Stickney,  161  N.  Y.  42,  55  N.  E.  396, 

76  Am.  St.  Rep.  246. 

The  question  is  whether  the  execution  by  the  testatrix  of  the  codicil 
revived  and  republished  the  earlier  will  of  1897,  a  completely  executed 
and  existent  instrument,  so  that  the  two  instruments,  together,  con- 
stituted the  final  testamentary  disposition  of  hei^  estate.  That  such  is, 
generally,  the  effect  of  a  codicil  and  that  the  will  thereby  republished 
speaks  from  the  date  of  the  codicil  is  a  proposition  settled  upon  au- 
thority. Van  Cortlandt  v.  Kip,  1  Hill,  590 ;  Brown  v.  Clark,  77  N. 
Y.  369 ;  Matter  of  Conway,  124  N.  Y.  455,  26  N.  E.  1028,  11  L.  R. 
A.  796.  That  there  intervenes,  between  the  will  referred  to  in  the 
codicil  and  the  codicil  itself,  another  will,  executed  by  the  testatrix  and, 
in  terms,  revoking  other  wills,  does  not  aflfect  the  result;  because  the 
codicil  to  the  earlier  will  implies  its  existence  and  effects,  impliedly,  if 
not  expressly,  the  revocation  of  the  intermediate  will. 

Of  course,  there  can  be  no  question  that  the  purpose  of  the  testatrix 
was  to  re-establish  her  earlier  will ;  for  the  title  given  to  the  instru- 
ment, its  subject-matter  and  the  circumstances  of  its  preparation,  with 
the  will  before  her,  clearly  indicate  it,    Equally  clear,  too,  should  it  be 


Ch.  8)  THE   REPUBLICATION   AND   REVIVAL   OF   WILLS.  361 

that  the  testatrix  purposed  the  abandonment  of  her  second  will.  There 
is  no  reason  in  the  law  why  her  manifest  purpose  should  not  be  given 
effect. 

The  object  of  the  Statute  of  Wills  is  to  effectuate  that  which  is 
proved  to  be  the  last  will  of  a  deceased  person.  To  that  end,  it  pre- 
scribes certain  formalities  of  execution,  whereby  the  possibility  of 
imposition,  or  of  fraud,  is  minimized.  When  a  codicil  is  executed 
with  those  formalities,  it  is  a  final  testamentary  disposition  and  the 
will,  to  which  it  is  shown  to  be  the  codicil,  if  itself  an  existent  and  a 
completed  instrument,  according  to  the  statute,  is  taken  up  and  incor- 
porated; so  that  the  two  taken  together  are  deemed  to,  and  neces- 
sarily do,  express  the  final  testamentary  intentions.  In  such  a  case, 
it  must,  logically  and  manifestly,  follow  that  any  other  will,  or  codicil, 
prior  in  date  to  the  codicil  in  probate,  is  revoked  and  the  presence  of 
express  words  to  that  effect,  in  the  codicil,  is  unnecessary.  See  1  AVil- 
Hams  on  Executors  (6th  Am.  Ed.)  pp.  251,  252;  1  Jarm.  on  Wills 
(5th  Am.  Ed.)  *114-*191;  Brown  v.  Clark,  supra;  In  the  Goods  of 
Reynolds,  L.  R.  3  Probate  &  Divorce,  35. 

In  Brown  v.  Clark,  a  married  woman  executed  a  codicil,  which,  ir 
terms,  referred  to  and  republished  a  will  executed  by  her  before  hei 
marriage,  and  it  was  held  that  it  effected  a  re-establishment  and  a 
valid  publication  of  the  will,  whici!.i  had  been  revoked  as  the  effect, 
under  the  statute,  of  the  marriage.  In  the  English  case  cited.  In  the 
Goods  of  Reynolds,  a  will  had  been  executed  in  1866,  and  a  codicil  to 
it  in  1871.  Later,  in  1871,  another  will  was  executed,  revoking  all  pre- 
vious wills  and  codicils.  In  1872,  a  codicil  was  executed,  entitled: 
•  "This  is  a  codicil  to  the  will  of  B.  R.,  dated  May,  1866."  Probate  was 
decreed  of  the  will  of  1866  and  of  the  codicil  of  1872,  by  which  it  had 
been  revived.  The  codicil  of  May,  1871,  was  held  not  to  be  revived, 
as  there  was  nothing  to  show  such  an  intention. 

I  think  the  judgment  below  is  right  and  that  it  should  be  affirmed, 
with  costs  to  the  respondents,  the  Albany  Historical  and  Art  Society 
and  the  executors,  to  be  paid  out  of  the  estate. 

Judgment  affirmed.* 


IZARD  V.  HURST. 

(High  Court  of  Chancery,  1697.     2  Freem.  C.  C.  224.) 

The  defendant's  testator  by  his  will  gave  his  four  daughters  £600 
apiece,  and  afterwards  married  his  eldest  daughter  to  the  plaintiff,  and 
gave  her  i700  portion ;  after  that  he  makes  a  codicil  and  gives  £100 
apiece  to  his  unmarried  daughters,  and  thereby  ratifies  and  confirms 
his  will,  and  dies;  and  the  plaintiff  preferred  his  bill  for  the  legacy 
of  £600  given  to  his  wife  by  the  said  will;   and  the  only  question  was, 

*  See  Neff's  Appeal,  48  Pa.  501  (1865).  On  the  correction  of  a  mistaken 
reference  to  a  prior  will,  see  note  11  to  Orosbie  v.  MacDoual,  ante,  pp.  352,  35a 


362  LAST   WILLS    AND   TESTAMENTS.  (Parti 

whether  the  portion  given  by  the  testator  in  his  lifetime,  should  be 
intended  in  satisfaction  of  the  legacy? 

And  held  [by  Sir  John  Trevor,  M.  R.]  that  it  should;  and  agreed 
to  be  the  constant  rule  of  this  court,  that  where  a  legacy  was  given  to 
a  child,  who  afterwards  upon  marriage  or  otherwise  had  the  like  or  a 
greater  sum,  it  should  be  intended  in  satisfaction  of  the  legacy,  unless 
the  testator  should  declare  his  intent  to  be  otherwise ;  and  it  was*  said 
the  words  of  ratifying  and  confirming  do  not  alter  the  case,  though 
they  amount  to  a  new  publication,  being  only  words  of  form,  and  de- 
clare nothing  of  the  testator's  intent  in  this  matter.^^ 

13  gee  Tanton  v.  Keller,  167  111.  129,  47  N.  E.  376  (1897) ;  Langdon  v.  Astor'a 
Ex'rs,  16  N.  Y.  9  (1857).  Compare  Trustees  v.  Tufts,  151  Mass.  76,  23  N.  E. 
1(K)7,  7  L.  R.  A.  390  (1800). 

"It  has  been  argued  that  the  codicil  of  the  23d  of  June.  1818.  confirming 
the  will,  makes  the  will  speak  as  of  the  date  of  the  codicil,  and  therefore 
revives  the  legacy,  if  it  had  been  adeemed  by  the  settlement,  and  at  all 
events  is  evidence  of  an  intention  that  the  legacy  should  take  effect.  It  is 
very  true  that  a  codicil  republishing  a  will  makes  the  will  speak  as  from 
its  own  date  for  the  purpose  of  passing  after-acquired  lands,  but  not  for  the 
purpose  of  reviving  a  legacy  revoked,  adeemed,  or  satisfied.  The  codicil  can 
only  act  upon  the  will  as  it  existed  at  the  time:  and,  at  the  time,  the  legacy 
revoked,  adeemed,  or  satisfied  formed  no  part  of  it.  Any  other  rule  would 
make  a  codicil,  merely  republishing  a  will,  operate  as  a  new  bequest,  and  so 
revoke  any  codicil  by  which  a  legacy  given  by  the  will  had  been  revoked, 
and  undo  every  act  by  which  it  may  have  been  adeemed  or  satisfied."  Lord 
Cottenham.  in  Powys  v.  Mansfield,  3  Myl.  &  Cr.  359,  375,  376  (1837). 

In  Hubbard  v.  Hubbard,  198  111.  621,  64  N.  E.  1038  (1902),  a  codicil  con- 
firming a  will  was  held  not  to  restore  a  bequest  in  the  will  stricken  out  by 
the  testator  prior  to  the  execution  of  the  codicil.  On  the  effect  of  republica- 
tion on  lapsed  legacies,  see  1  Jarman  on  Wills  (5th  Am.  "Ed.)  *200. 

Curative  Effect  of  a  Codicil.— While  an  adeemed  gift  will  not  be  re- 
newed by  mere  republication  of  the  will  by  a  codicil,  a  will  bad  for  want  of 
testamentary  capacity  may  be  rendered  good  by  a  codicil  republishing  it. 

"It  is  clear,  from  this  evidence,  that  the  issue  made  up  on  the  appeal  from 
the  ordiuaiT  involved  the  validity  of  the  codicil,  as  w^ell  as  the  will.  *  *  * 
This  is  manifest  from  the  consideration  that,  although  the  will,  when  exe- 
cuted, might  be  bad,  or  the  testator  might  be  non  compos  mentis,  or  under 
duress  or  undue  influence,  at  its  execution,  yet  if  he  was  sane  and  free  from 
duress  or  undue  influence  when  he  executed  the  codicil,  that  would  be  a 
republication  and  confirmation  of  the  will,  and  would  free  it  from  the  ob- 
jection to  which  it  was  liable  at  its  execution."  Evans.  J.,  in  Farr  v. 
b'Neall,  1  Rich.  Law  rs.  C.)  SO,  89  (1844).  See  Taylor  v.  Kelly,  31  Ala.  59, 
08  Am.  Dec.  150  (1857).  If  a  will  be  vitiated  by  undue  influence,  nothing 
short  of  republication  will  validate  it.  Lamb  v.  Girtman.  26  Ga.  625  (1859); 
Chaddick  v.  Haley,  81  Tex.  617,  17  S.  W.  233  (1891).  But  where  a  testator 
retains  a  will  unrevoked,  when  he  is  free  from  undue  influence  and  has  ample 
opportunity  to  revoke  it,  a  presumption  that  there  was  no  undue  influence 
in  its  execution  may  be  Indulged.  Kelly  v.  Thewles,  2  Ir.  Ch.  510  (18.52). 
A  duly  executed  codicil,  of  course,  covers  other  defects  in  jurisdictions  recog- 
nizing the  doctrine  of  incorpm-ation  by  refei'ence.  In  Walton's  Estate,  194  Pa. 
528,  5.33,  45  Atl.  426,  428  (1900),  for  instance,  the  court  said:  "There  was  a 
grave  irregularity  in  the  execution  of  the  first  codicil.  One  of  the  subscribing 
witnesses  did  not  attest  it  iu  tlie  presence  of  the  testatrix.  But  there  was  a 
subsequent  codicil,  properly  executed  and  attested,  and  that  codicil  contained 
an  express  republication  of  both  the  will  and  the  first  codicil,  and  the  latter 
instrument  was  thereby  validated."  But  the  New  York  and  the  Connecticut 
rule  must  be  borne  in  mind.     See  In  re  Emmons'  Will.  ante.  p.  349. 


Ch.  8)  THE    EEPUBLTCATION    AND   REVIVAL   OP   WILLS.  363 

GURNEY  V.  GURNEY. 

(High  Court  of  Chancery,  1855.    3  Drew.  Ch.  208.) 

Thomas  Gurney  made  his  will  on  the  6th  April,  1853,  and  by  it, 
among  other  legacies,  he  gave  £100  to  Richard  Fry. 

He  gave  also  a  share  of  his  residue  to  W.  G.  Temple. 

Neither  Fry  nor  Temple  attested  the  will.  The  testator  made  two 
codicils,  both  of  which  were  attested  by  Fry  and  Temple. 

By  the  first  codicil  the  testator  revoked  certain  bequests,  the  effect 
of  which  was  to  swell  the  residue. 

Among  other  questions  on  the  will  this  question  arose:  Whether 
the  legacy  to  Fry  was  avoided  by  his  attesting  the  codicils ;  and 
whether  the  title  of  Temple  to  a  sliare  of  the  residue  was  affected 
by  his  attesting  the  codicils  ? 

The  Vice  Chancellor  [Sir  R.  T.  Kindersley],  after  stating  the 
facts  and  referring  to  the  Wills  Act,  proceeded: 

Now  the  word  "thereby,"  referring  as  it  does  to  the  words  pre- 
ceding, must  be  construed  to  mean  by  the  same  testamentary  instru- 
ment which  is  attested;  and  that  does  not  apply  to  the  case  where 
a  legatee  has  not  attested  the  instrument  by  which  he  takes  his  legacy, 
but  only  where  he  has  attested  the  same  instrument  under  which  he 
takes.  I  think,  therefore,  that  the  legacy  to  Fry  is  not  void  under 
the  statute.  Then  there  is  another  case  of  the  same  description  re- 
lating to  another  person  who  witnessed  one  of  the  codicils,  viz.,  Tem- 
ple. The  testator  by  his  will  gave  his  residue  in  equal  shares  among 
his  brothers  and  sisters  for  their  lives,  and  on  their  deaths  to  go 
among  their  respective  children ;  and  Temple,  who  attested  the  codicil, 
was  a  child  of  one  of  the  sisters,  and  under  the  will  he  was  therefore 
entitled  to  a  share  of  the  residuary  estate.  By  the  codicil  the  testator 
revoked  a  legacy,  the  effect  of  which  was  to  increase  the  shares  of 
those  who  were  entitled  to  the  residue,  and  Temple,  who  was  ben- 
efited by  this  increase,  attested  the  codicil.  The  question  is,  what  is 
the  effect  of  the  statute  on  this  state  of  things? 

It  appears  to  me  that  I  am  not  to  extend  the  operation  of  the  stat- 
ute, but  to  look  at  what  is  the  fair  interpretation  of  the  words ;  and 
the  question  is  whether,  by  the  codicil  so  attested,  any  beneficial  devise, 
legacy,  estate,  interest,  gift  or  appointment  is  given  or  made  to  the 
legatee  who  attested  it.  I  think  that  the  effect  of  the  codicil  does  not 
amount  to  any  beneficial  devise,  legacy,  estate,  interest,  gift  or  ap- 
pointment given  or  made  to  Temple,  and  therefore  that  Temple's  case 
is  not  within  the  statute.^* 

14 See  Tempest  v.  Tempest,  2  K.  &  J.  635  (1856).  Compare  Anderson  v.. 
Anderson,  L.  R.  13  Eq.  Cas.  381  (1872). 


364  LAST    WILLS    AND    TESTAMENTS.  (Part  1 

In  re  McCAULEY'S  ESTATE. 

Appeal  of  STATE. 

^Supreme  CJourt  of  California,  1903.     138  Oal.  432,  71  Pac.  512.) 

Chipman,  C.  Jennie  C.  McCauley  duly  executed  a  will  on  Feb- 
ruary 12,  1900,  in  which  she,  among  others,  made  several  bequests 
to  charitable  institutions.  On  March  16,  1900,  she  duly  executed  a 
codicil  to  this  will.  She  died  April  14,  1900,  28  days  after  the  execu- 
tion of  the  codicil.  The  state,  by  the  attorney  general,  filed  objec- 
tions and  contest  to  the  petition  for  final  distribution,  so  far  as  con- 
cerned the  charitable  bequests,  and  prayed  that  they  be  adjudged  void, 
and  that  they  be  distributed  to  the  state  for  the  support  of  the  com- 
mon schools.  The  trial  court  adjudged  the  said  bequests  to  be  valid, 
and  decreed  distribution  accordingly.  The  state  appeals  from  the  de- 
cree. 

The  codicil  did  not  attempt  to  change  any  of  the  charitable  bequests, 
or  any  of  the  general  provisions  of  the  will,  but  related  solely  to  spe- 
cific bequests  and  devises  to  certain  individual  legatees.  It  stated  that 
"the  foregoing  codicil  *  *  *  \y2ls,  at  the  date  hereof,  *  *  * 
signed,  sealed,  and  published  as,  and  declared  to  be,  together  with  the 
will  set  forth  on  the  preceding  pages,  to  be  her  last  will  and  testa- 
ment," etc. 

Section  1313,  Civ,  Code,  provides  as  follows:  "No  estate,  real  or 
personal,  shall  be  bequeathed  or  devised  to  any  charitable  or  benevo- 
lent society  or  corporation,  or  to  any  person  or  persons  in  trust  for 
charitable  uses,  except  the  same  be  done  by  will  duly  executed  at  least 
thirty  days  before  the  decease  of  the  testator."  Section  1287  of  the 
same  Code  reads  as  follows:  "The  execution  of  a  codicil,  referring 
to  a  previous  will,  has  the  effect  to  republish  the  will,  as  modified  by 
the  codicil."  The  testatrix  left  "no  relatives  or  next  of  kin,"  as  she 
declared  in  her  will,  and,  as  seems  to  be  conceded  by  respondents,  the 
bequests  in  question  will  escheat  if,  as  to  such  bequests,  the  will  is 
invalid. 

Appellant's  contention  is  "that  the  effect  of  the  republication  of  the 
will  by  the  codicil  of  March  16,  1900,  and  the  testatrix  dying  in  less 
than  30  days  thereafter,  is  to  invalidate  all  the  bequests  to  charity  con- 
tained in  the  will."  Appellant  cites  numerous  cases  to  the  effect  that 
the  codicil  brings  the  will  to  it,  and  makes  it  the  will  from  the  date 
of  the  codicil.  Some  of  the  cases  speak  of  the  codicil  as  a  republica- 
tion of  the  whole  will  at  the  date  of  the  codicil.  Still  others  hold  that 
the  codicil  operates  as  a  republication  of  the  will,  the  effect  of  which 
is  to  bring  down  the  will  to  the  date  of  the  codicil,  so  that  both  in- 
struments are  to  be  considered  as  speaking  at  the  same  date,  and 
taking  effect  at  the  same  time.  Payne  v.  Payne,  18  Cal.  292,  at  page 
302,  and  In  re  Ladd,  94  Cal.  670,  30  Pac.  99,  are  cited  as  in  line  with 
the  authorities  elsewhere  holding  as  above  stated. 


Ch.    8)  THE    REPUBLICATION   AND   REVIVAL   OF   WILLS.  365 

In  the  Ladd  Case  it  was  said  that  "the  execution  of  the  codicil  had 
the  effect  'to  republish  the  will  as  modified  by  the  codicil'  (Civ.  Code, 
§  1287)  as  of  the  date  of  the  codicil  (Payne  v.  Payne,  18  Cal.  302)." 
Again:  "The  effect  of  its  execution  was  to  republish  the  entire  will, 
and  not  merely  the  clause  so  modified,  'as  if  the  testator  had  inserted 
in  the  codicil  all  the  words  of  the  will.'  "  Doe  v.  Walker,  12  Mees. 
&  W.  597.  In  giving  construction  to  the  will  it  was  said  that  "the 
whole  of  the  original  will  and  the  codicil  are  to  be  construed  as  a  single 
instrument  executed  at  the  date  of  the  codicil,  and  of  which  all  the 
parts  are  to  be  construed,  'so  as,  if  possible,  to  form  one  consistent 
whole.'  "  Civ.  Code,  §  1321.  But  it  was  also  said :  "A  codicil  is  never 
construed  to  disturb  the  dispositions  of  the  will  further  than  is  abso- 
lutely necessary  for  the  purpose  of  giving  effect  to  the  codicil.  1  Jar- 
man  on  Wills,  176.  'The  dispositions  made  by  a  will  are  not  to  be 
disturbed  by  a  codicil  further  than  is  absolutely  necessary  in  order  to 
give  it  effect,  and  a  clear  disposition  made  by  the  will  is  not  revoked  by 
a  doubtful  expression  or  inconsistent  disposition  in  a  codicil.'  Kane 
V.  Astor's  Ex'rs,  5  Sandf.  (N.  Y.)  533.  'The  different  parts  of  a 
will,  or  of  a  will  and  codicil,  shall  be  reconciled  if  possible ;  and,  where 
a  bequest  has  once  been  made,  it  shall  not  be  revoked,  unless  no  other 
construction  can  fairly  be  put  upon  the  language  used  by  the  testator. 
Colt  V.  Colt,  32  Conn.  446.  See,  also,  Wetmore  v.  Parker,  52  N.  Y. 
462;  Johns  Hopkins  University  v.  Pinckney,  55  Md.  365.'" 

No  one  for  a  moment  can  suppose  that  the  codicil  in  the  present 
will  was  intended  to  disturb  the  bequests  made  in  the  original  will  in 
aid  of  the  charities  named.  These  bequests  were  not  only  left  un- 
touched by  the  codicil,  but  the  testatrix  declared  that  "the  foregoing 
codicil  *  *  *  was  *  *  *  published  as,  and  declared  to  be,  to- 
gether with  the  will  set  forth  on  the  preceding  pages,  to  be  her  last 
will."  That  the  testatrix  intended  her  bequests  first  made  in  the  will 
to  stand  unaffected  by  the  codicil  can  admit  of  no  doubt,  and  yet  we 
are  asked  to  give  such  construction  to  section  1287  as  shall  destroy  a 
large  number  of  her  bequests,  and  practically  nullify  the  testatrix's 
clearly  expressed  intention  with  respect  to  them.  We  have  seen  that 
no  such  construction  can  be  given  to  the  codicil  itself.  Can  we — or, 
rather,  are  we  compelled  to — so  construe  the  statute  as  to  destroy  these 
bequests,  and  thus  thwart  the  design  of  the  testator? 

Section  1292  provides  that:  "Except  in  the  cases  in  this  chapter 
mentioned,  no  written  will,  nor  any  part  thereof,  can  be  revoked  or  al- 
tered otherwise  than:  (1)  By  a  written  will,  or  other  writing  of  the 
testator,  declaring  such  revocation  or  alteration;  *  *  *  or,  (2)  by 
being  *  *  *  destroyed,  with  the  intent  and  for  the  purpose  of 
revoking.  *  *  *"  And  section  1317  provides  that:  "A  will  is  to 
be  construed  according  to  the  intention  of  the  testator.  Where  his  in- 
tention cannot  have  effect  to  its  full  extent,  it  must  have  effect  as  far 
as  possible." 


366  LAST   WILLS   AND   TESTAMENTS.  (Part  1 

In  construing  section  1287,  we  must  keep  in  view  the  various  sec- 
tions relating  to  the  subject  of  wills,  and  must  so  construe  that  sec- 
tion as  to  preserve  the  letter  and  spirit  of  all  the  provisions  of  the 
statute  so  far  as  possible.  The  section  should  have  such  construction, 
if  it  is  possible  in  reason  to  do  so,  as  will  carry  out  the  known  in- 
tention of  the  testator.  Section  1313  invalidates  the  charitable  bequest 
unless  the  will  is  "duly  executed  at  least  thirty  days  before  the  de- 
cease of  the  testator."  When  the  will  is  once  "duly  executed,"  it  re- 
mains the  will  of  the  testator  until  revoked.  This  may  be  done  as  pre- 
scribed in  section  1292. 

A  codicil  does  not  disturb  the  will  except  so  far  as  it  is  inconsistent 
with  it,  or  in  terms  or  by  necessary  intendment  revokes  it.  As  was 
said  in  the  Ladd  Case :  "Where  a  bequest  has  once  been  made,  it  shall 
not  be  revoked  unless  no  other  construction  can  fairly  be  put  upon  the 
language  used  by  the  testator."  For  some  purposes,  no  doubt,  the  will 
speaks  from  the  date  of  the  codicil,  but  this  is  true  only  so  far  as  the 
codicil  requires  that  it  should  so  speak.  It  is  entirely  consistent  with 
the  statute  and  the  codicil  now  before  us  that  the  contested  bequests 
should  stand  as  made  of  the  date  of  the  will.  The  testatrix  declared 
the  will  as  first  executed  to  be  her  will,  except  as  to  the  changes  made 
in  the  codicil,  and  the  statute  (section  1287)  says  that  the  effect  of 
the  codicil  is  "to  republish  the  will,  as  modified  by  the  codicil,"  and 
not  otherwise.  To  construe  the  statute,  as  is  contended  for  by  appel- 
lant, is  to  leave  a  large  part  of  the  estate  undisposed  of,  as  well  as  to 
defeat  the  object  of  the  testatrix.  We  do  not  think  it  should  be  given 
any  such  construction. 

A  statute  of  Pennsylvania,  referred  to  as  the  act  of  April  26,  1855 
(P.  L.  332),  provided:  "No  estate,^  real  or  personal,  shall  hereafter 
be  bequeathed,  devised  or  conveyed  to  any  body  politic  or  to  any  per- 
son in  trust  for  religious  or  charitable  uses,  except  the  same  be  done 
by  deed  or  will  attested  by  two  credible  witnesses,  at  least  one  cal- 
endar month  before  the  decease  of  the  testator  or  alienor."  In  1879 
an  act  was  passed  in  that  state  by  which  it  was  provided  "that  every 
will  shall  be  construed  with  reference  to  the  real  or  personal  estate 
comprised  in  it  to  speak  and  take  effect  as  if  it  had  been  executed  im- 
mediately before  the  death  of  the  testator." 

In  Carl's  Appeal,  106  Pa.  635,  the  will  was  executed  September  6, 
1877.  A  codicil  was  executed  March  14,  1881,  and  the  testator  died 
April  4,  1881.  It  was  contended  that  the  charitable  bequests  of  the 
will  were  void.  In  construing  the  act  of  1879  with  that  of  1855,  the 
orphans'  court,  Gibson,  J.,  speaking  of  the  effect  of  the  republica- 
tion of  a  will  by  a  codicil,  said :  "There  is  a  class  of  cases  about  which 
there  can  be  no  contention;  such  as  Neff's  Appeal,  48  Pa  501,  in 
which  the  question  was  whether  the  codicil  revoked  a  second  will  and 
republished  an  earlier  will  on  which  it  was  written.  *  *  *  But  we 
find  that  in  all  other  cases,  since  the  modern  statutes  of  wills,  which 


Ch.  8)  THE    REPUBLICATION    AND    REVIVAL    OF    WILLS.  367 

may  arise  out  of  the  execution  of  a  codicil,  questions  regarding  the 
intention  of  the  testator  are  involved  to  such  an  extent  as  to  qualify 
the  rule  invoked  here  materially" — citing  instances,  in  one  of  which 
(Alsop's  Appeal,  9  Pa.  374)  this  distinction  is  shown:  "That  though, 
for  some  purposes,  a  will  and  codicil  are  to  be  regarded  as  making 
but  one  testament,  they  will  not  be  considered  as  a  single  instrument 
where  a  manifest  intention  requires  otherwise." 

Other  cases  are  cited  to  show,  for  example,  that  the  first  will  would 
have  been  revoked  by  the  second  will,  but  for  the  codicil  which  gave 
it  life;  "and  yet  it  did  not  affect  the  validity  of  the  charitable  bequests 
in  the  first  will.  This  could  only  be  on  the  ground  of  its  being  a  sep- 
arate instrument."  Hamilton's  Estate,  74  Pa.  69,  and  Bradish  v.  Mc- 
Clellan,  100  Pa.  607;  Neff's  Appeal,  supra.  The  learned  justice  con- 
cludes: "The  question  raised  here  as  to  the  period  from  which  this 
will  speaks,  based  upon  the  doctrine  of  republication  by  a  codicil, 
would  make  void  the  charitable  bequest  given  by  the  original  will, 
contrary  to  the  intention  of  the  testatrix.  The  very  act  of  republica- 
tion ipso  facto  would  make  null  and  void  that  which  republication  by 
intendment  of  law  reaffirms.  I  think  the  validity  of  the  residuary  be- 
quest *  *  *  is  not  affected  in  any  way  by  the  codicil,  and  that  it 
does  not  bring  the  bequest  within  the  prohibition  of  the  act  of  1855." 

On  appeal  the  views  of  the  orphans'  court  were  fully  indorsed.  In 
further  support  of  the  decree  it  was  said:  "The  fault  of  the  oppos- 
ing counsel  lies  in  confounding  a  legal  fiction  with  a  physical  fact. 
Of  course,  all  wills  must  speak  as  of  the  time  of  the  testator's  death. 
It  is  a  pure  legal  fiction  that  they  were  executed  at  that  time.  The 
fact  of  actual  execution  remains,  and  is  entirely  unaffected  by  the  fic- 
tion. Whenever  the  factum  is  material,  of  its  own  force,  in  deter- 
mining results,  it  will  be  treated  as  of  the  date  of  its  actual  occur- 
rence." 

Our  statute  (section  1287,  Civ.  Code)  certainly  does  not,  by  its 
terms,  compel  the  construction  urged  by  the  attorney  general.  To 
give  to  it  such  construction  we  must  import  into  the  statute  a  legal 
fiction.  This  we  might  do  in  some  cases,  but  not  where  it  would  re- 
sult in  defeating  the  clearly  expressed  intention  of  the  testatrix. 

The  judgment  should  be  affirmed. 

Per  Curiam.  For  the  reasons  given  in  the  foregoing  opinion,  the 
judgment  is  afiirmed.^" 

IB  See  Slo.in's  Appeal,  Watt's  Estate,  16S  Pa.  422,  32  Atl.  42,  47  Am.  St. 
Eep.  8S9  (1S0.5) ;  In  re  I\Ioore  (Long  v.  Moore),  [1907]  1  Ir.  R.  315.  In  the 
latter  case  the  court,  by  Barton,  J.,  said:  "Republication  gives  to  tlie  will  a 
fresh  starting  point,  but  it  does  not  erase  the  old  date.  Nor  does  it,  in  my 
opinion,  falsify  the  fact  that  the  will  contained  a  particular  devise  and  was 
executed  at  a  particular  time.  *  *  *  lu  short,  the  aim  of  the  court  has 
always  been  to  apply  the  rules  as  to  republication  with  good  sense  and  dis- 
crimination, for  the  purpose  of  as  far  as  possible  effectuating  up  to  date  the 
intentions  of  testators.  But  the  real  date  and  the  real  facts  connected  with 
the  original  execution  of  the  will  are  not  altered  or  falsified."  Pages  318, 
320. 


368  ,  LAST   WILLS   AND    TESTAMENTS.  (Part  1 


SECTION  3.-^REVIVAL 


PICKENS  V.  DAVIS. 

Supreme  Judicial  Court  of  Massachusetts,  1883.    134  Mass.  252,  45  Am.  Rep. 

322.) 

Appeal  from  a  decree  of  the  probate  court,  allowing  the  will  of 
Mary  Davis. 

C.  Allen,  J.  The  two  questions  in  this  case  are,  first,  whether  the 
cancellation  of  a  will,  which  was  duly  executed,  and  which  contained 
a  clause  expressly  revoking  former  wills,  has  the  effect,  as  matter  of 
law,  to  revive  a  former  will  which  has  not  been  destroyed,  or  whether 
in  each  instance  it  is  to  be  regarded  as  a  question  of  intention,  to  be 
collected  from  all  the  circumstances  of  the  case;  and  secondly,  if  it 
■s  to  be  regarded  as  a  question  of  intention,  whether  subsequent  oral 
declarations  of  the  testator  are  admissible  in  evidence  for  the  purpose 
of  showing  what  his  intention  was.  These  are  open  questions  in  this 
commonwealth.  In  Reid  v.  Borland,  14  Mass.  208,  the  second  will 
was  invalid,  for  want  of  due  attestation.  In  Laughton  v.  Atkins,  1 
Pick.  535,  the  second  will  was  adjudged  to  be  null  and  void,  as  hav- 
ing been  procured  through  undue  influence  and  fraud ;  and  the  whole 
decision  went  upon  the  ground  that  it  was  never  valid,  and  could 
not  be. 

The  first  of  these  questions  has  been  much  discussed,  both  in  Eng- 
land and  America ;  and  it  has  often  been  said  that  the  courts  of  com- 
mon law  and  the  ecclesiastical  courts  in  England  are  at  variance  upon 
it.  See  1  Wms.  on  Executors  (5th  Am.  Ed.)  154-156,  where  the  au- 
thorities are  cited.  The  doctrine  of  the  ecclesiastical  courts  was  thus 
stated  in  1824  in  Usticke  v.  Bawden,  2  Add.  Ecc.  116,  125:  "The 
legal  presumption  is  neither  adverse  to,  nor  in  favor  of,  the  revival 
of  a  former  uncancelled,  upon  the  cancellation  of  a  later,  revocatory, 
will.  Having  furnished  this  principle,  the  law  withdraws  altogether; 
and  leaves  the  question,  as  one  of  intention  purely,  and  open  to  a 
decision,  either  way,  solely  according  to  facts  and  circumstances." 
See,  also,  Moore  v.  Moore,  1  Phillim.  406 ;  Wilson  v.  Wilson,  3  Phil- 
lim.  543,  554 ;  Hooton  v.  Head,  3  Phillim.  26 ;  Kirkcudbright  v.  Kirk- 
cudbright, 1  Hagg.  Ecc.  325 ;  Welch  v.  Phillips,  1  Moore  P.  C.  299. 
In  Powell  on  Dev.  (Ed.  of  1827)  527,  528,  a  distinction  is  taken  be- 
tween the  effect  of  the  cancellation  of  a  second  will  which  contains  no 
express  clause  revoking  former  wills,  and  of  a  will  which  contains 
such  a  clause;  and  in  respect  to  the  latter  it  is  said  that,  "if  a  prior 
will  be  made,  and  then  a  subsequent  one  expressly  revoking  the  for- 
mer, in  such  case,  although  the  first  will  be  left  entire,  and  the  sec- 
ond will  afterwards  cancelled,  yet  the  better  opinion  seems  to  be,  that 


Ch.  8)  THE    KEPDBLICATION   AND    REVIVAL   OF    WILLS.  36^ 

the  former  is  not  thereby  set  up  again."    Jarman's  note  questions  the 
soundness  of  the  above  doctrine  (page  529,  note). 

While  this  apparent  discrepancy  in  the  respective  courts  remained 
not  fully  reconciled,  in  1837,  the  English  Statute  of  Wills  was  passed 
(St.  7  Wm.  IV.  &  1  Vict.  c.  26),  section  22  of  which  provided  that 
"no  will  or  codicil,  or  any  part  thereof,  which  shall  be  in  any  manner 
revoked,  shall  be  revived  otherwise  than  by  the  re-execution  thereof, 
or  by  a  codicil  executed  in  manner  hereinbefore  required,  and  show- 
ing an  intention  to  revive  the  same."  Since  the  enactment  of  this 
statute,  the  decisions  in  all  the  courts  have  been  uniform,  that  after 
the  execution  of  a  subsequent  will  which  contained  an  express  revoca- 
tion, or  which  by  reason  of  inconsistent  provisions  amounted  to  an 
implied  revocation,  of  a  former  will,  such  former  will  would  not  be 
revived  by  the  cancellation  or  destruction  of  the  later  one.  Major  v. 
Williams,  3  Curt.  Ecc.  432;  James  v.  Cohen,  3  Curt.  Ecc.  770,  782; 
Brown  v.  Brown,  8  El.  &  Bl.  876 ;  Dickinson  v.  Swatman,  30  L.  J. 
(N.  S.)  P.  &  M.  84;  Wood  v.  Wood,  E.  R.  1  P.  &  D.  309.  In  order 
to  have  the  effect  of  revocation,  it  must  of  course  be  made  to  appear 
that  the  later  will  contained  a  revocatory  clause,  or  provisions  which 
were  inconsistent  with  the  former  will ;  and  the  mere  fact  of  the 
execution  of  a  subsequent  will,  without  evidence  of  its  contents,  has 
been  considered  insufificient  to  amount  to  a  revocation.  Cutto  v.  Gil- 
bert, 9  Moore,  P.  C.  131.  See,  also.  Nelson  v.  McGiffert,  3  Barb.  Ch. 
(N.  Y.)  158,  49  Am.  Dec.  170. 

In  the  United  States,  there  is  a  like  discrepancy  in  the  decisions  in 
diiYerent  states,  though  the  clear  preponderance  appears  to  be  in  favor 
of  a  doctrine  substantially  like  that  established  in  the  ecclesiastical 
■  courts.  This  rule  was  established  in  Connecticut,  in  1821,  in  James 
V.  ]\Iarvin,  3  Conn.  576,  where  it  was  held  that  the  revocatory  clause 
in  the  second  will,  proprio  vigore,  operated  instantaneously  to  effect  a 
revocation,  and  that  the  destruction  of  the  second  will  did  not  set  up 
the  former  one ;  and  the  like  rule  was  declared  to  exist  in  New  York, 
by  the  Supreme  Court  of  that  state,  in  1857,  in  Simmons  v.  Simmons, 
26  Barb.  68.  The  question  was  greatly  considered  in  Maryland,  in 
1863,  in  Colvin  v.  Warford,  20  Md.  357,  391,  and  the  court  declared 
that  "a.  clause  in  a  subsequent  will,  which  in  terms  revokes  a  previous 
will,  is  not  only  an  expression  of  the  purpose  to  revoke  the  previous 
will,  but  an  actual  consummation  of  it,  and  the  revocation  is  complete 
and  conclusive,  without  regard  to  the  testamentary  provisions  of  the 
will  containing  it."  The  court  further  held  that  the  cancellation  of 
a  revoking  will,  prima  facie,  is  evidence  of  an  intention  to  revive  the 
previous  will,  but  the  presumption  may  be  rebutted  by  evidence  of 
the  attending  circumstances  and  probable  motives  of  the  testator.  In 
Harwell  v.  Lively,  30  Ga.  315,  76  Am.  Dec.  649,  in  1860,  a  similar  rule 
was  laid  down,  and  maintained  with  great  force  of  reasoning.  Thai 
opinion  of  the  court  concludes  v/ith  the  following  pertinent  sugges- 
CoST.  Wills— 24 


370  LAST    V.ILLS   AND   TESTAMENTS.  (Part  1 

tion :  "It  must  be  conceded  there  is  much  law  adverse  to  the  doctrine. 
*  *  *  Calculated  as  it  is  to  subserve  and  enforce  the  tenor  and 
spirit  of  our  own  legislation,  and  to  give  to  our  people  the  full  benefit 
of  the  two  hundred  years'  experience  of  the  mother  country,  as  em- 
bodied in  the  late  act,  is  it  not  the  dictate  of  wisdom  to  begin  in  this 
state  where  they  have  ended  in  England?  We  think  so."  See,  also, 
Barksdale  v.  Hopkins,  23  Ga.  332.  The  courts  of  Mississippi,  in  1836, 
and  of  Michigan,  in  1881,  adopted  the  same  rule.  Bohanon  v.  Walcot, 
1  How.  (Miss.)  336,  29  Am.  Dec.  631;  Scott  v.  Fink,  45  Mich.  241,  7 
N.  W.  799. 

It  is  to  be  observed,  that  some  of  the  foregoing  decisions  are  put 
expressly  on  the  ground  that  the  later  will  contained  an  express  clause 
of  revocation.  45  Mich.  246,  7  N.  W.  799;  20  Md.  392.  An  ex- 
amination of  the  cases  decided  in  Pennsylvania  leads  us  to  infer  that 
a  similar  rule  would  probably  have  been  adopted  in  that  state,  if  the 
question  had  been  directly  presented.  Lawson  v.  Morrison,  2  Dall. 
286,  290,  1  L.  Ed.  384,  1  Am.  Dec.  288;  Boudinot  v.  Bradford,  2 
Yeates,  170,  s.  c.  2  Dall.  266,  1  L.  Ed.  375;  Flintham  v.  Bradford, 
10  Pa.  82,  85,  92. 

On  the  other  hand,  in  Taylor  v.  Taylor,  2  Nott  &  McC.  482,  in 
1820,  it  was  held  in  South  Carolina  that  the  earlier  will  revives  upon 
the  cancellation  of  the  later  one;  and  the  same  rule  prevails  in  New 
Jersey,  as  is  shown  by  Randall  v.  Beatty,  31  N.  J.  Eq.  643,  and  cases 
there  cited. 

In  various  states  of  the  Union  statutes  have  been  enacted  substan- 
tially to  the  same  effect  as  the  English  statute  above  cited,  showing 
that  wherever,  so  far  as  our  observation  has  extended,  the  subject 
has  been  dealt  with  by  legislation,  it  has  been  thought  wiser  and  bet- 
ter to  provide  that  an  earlier  will  shall  not  be  revived  by  the  can- 
cellation of  a  later  one.  There  are,  or  have  been,  such  statutes  in  New 
York,  Ohio,  Indiana,  Missouri,  Kentucky,  California,  Arkansas,  and 
Virginia,  and  probably  in  other  states.  Concerning  these  statutes  of 
New  York,  it  is  said  in  4  Kent,  Com.  532,  that  they  "have  essentially 
changed  the  law  on  the  subject  of  these  constructive  revocations,  and 
rescued  it  from  the  hard  operation  of  those  technical  rules  of  which 
we  have  complained,  and  placed  it  on  juster  and  more  rational 
grounds." 

On  the  whole,  the  question  being  an  open  one  in  this  state,  a  major- 
ity of  the  court  has  come  to  the  conclusion  that  the  destruction  of 
the  second  will  in  the  present  case  would  not  have  the  effect  to  revive 
the  first,  in  the  absence  of  evidence  to  show  that  such  was  the  inten- 
tion of  the  testator.  The  clause  of  revocation  is  not  necessarily  testa- 
mentary in  its  character.  It  might  as  well  be  executed  as  a  separate 
instrument.  The  fact  that  it  is  inserted  in  a  will  does  not  necessarily 
show  that  the  testator  intended  that  it  should  be  dependent  on  the 
continuance  in  force  of  all  the  other  provisions  by  which  his  property 


Ch.  8)  THE    REPUBLICATION    AND    REVIVAL   OF    WILLS.  371 

is  disposed  of.  It  is  more  reasonable  and  natural  to  assume  that  such 
revocatory  clause  shows  emphatically  and  conclusively  that  he  has 
abandoned  his  former  intentions,  and  substituted  therefor  a  new  dis- 
position of  his  property,  which  for  the  present,  and  unless  again  mod- 
ified, shall  stand  as  representing  his  wishes  upon  the  subject.  But 
when  the  new  plan  is  in  its  turn  abandoned,  and  such  abandonment  is 
shown  by  a  cancellation  of  the  later  will,  it  by  no  means  follows  that 
his  mind  reverts  to  the  original  scheme.  In  point  of  fact,  we  believe 
that  this  would  comparatively  seldom  be  found  to  be  true. 

It  is  only  by  an  artificial  presumption,  created  originally  for  the 
purpose  of  preventing  intestacy,  that  such  a  rule  of  law  has  ever  been 
held.  It  does  not  correctly  represent  the  actual  operation  of  the  minds 
of  testators,  in  the  majority  of  instances.  The  wisdom  which  has  come 
from  experience,  in  England  and  in  this  country,  seems  to  point  the 
other  way.  In  the  absence  of  any  statutory  provision  to  the  contrary, 
we  are  inclined  to  the  opinion  that  such  intention,  if  proved  to  have 
existed  at  the  time  of  cancelling  the  second  will,  would  give  to  the 
act  of  such  cancellation  the  effect  of  reviving  the  former  v/ill ;  and 
that  it  would  be  open  to  prove  such  intention  by  parol  evidence.  Un- 
der the  statute  of  England,  and  of  Virginia,  and  perhaps  of  other 
states,  such  revival  cannot  be  proved  in  this  manner.  Major  v.  Wil- 
liams, and  Dickinson  v.  Swatman,  above  cited ;  Rudisill  v.  Rodes,  29 
Grat.  (Va.)  147.  But  this  results  from  the  express  provision  of  the 
statute. 

In  the  present  case,  there  was  no  evidence  tending  to  show  that 
the  testatrix  intended  to  revive  the  first  will ;  unless  the  bare  fact 
that  the  first  will  had  not  been  destroyed  amounted  to  such  evidence. 
Under  the  circumstances  stated  in  the  report,  little  weight  should  be 
given  to  that  fact.  The  will  was  not  in  the  custody  of  the  testatrix, 
and  the  evidence  tended  strongly  to  show  that  she  supposed  it  to  have 
been  destroyed. 

The  question,  therefore,  is  not  very  important,  in  this  case,  whether 
the  subsequent  declarations  of  the  testatrix  were  admissible  in  evi- 
dence for  the  purpose  of  showing  that  she  did  not  intend,  by  her  can- 
cellation of  the  second  will,  to  revive  the  first ;  because,  in  the  absence 
of  any  affirmative  evidence  to  prove  the  existence  of  such  intention, 
the  first  will  could  not  be  admitted  to  probate.  Nevertheless  we  have 
considered  the  question,  and  are  of  opinion  that  such  declarations  were 
admissible  for  the  purpose  of  showing  the  intent  with  which  the  act 
was  done.  The  act  itself  was  consistent  with  an  intention  to  revive, 
or  not  to  revive,  the  earlier  will.  Whether  it  had  the  one  effect,  or  the 
other,  depended  upon  what  was  in  the  mind  of  the  testatrix.  It  would 
in  many  instances  be  more  satisfactory  to  have  some  decisive  declara- 
tion made  at  the  very  time,  and  showing  clearly  the  character  of  the 
act.  Evidence  of  declarations  made  at  other  times  is  to  be  received 
with  caution.  They  may  have  been  made  for  the  very  purpose  of 
misleading  the  hearer  as  to  the  disposition  which  the  speaker  meant 


372  LAST    WILLS   AND   TESTAMENTS.  (Part  1 

to  make  of  his  property.  On  the  other  hand,  they  may  have  been 
made  under  such  circumstances  as  to  furnish  an  entirely  satisfactory 
proof  of  his  real  purpose.  It  is  true,  that  it  may  not  be  proper  to 
prove  the  direct  act  of  cancellation,  destruction  or  revocation  in  this 
manner.  But  when  there  is  other  evidence  of  an  act  of  revocation, 
and  when  the  question  of  the  revival  of  an  earlier  will  depends  upon 
the  intention  of  the  testator,  which  is  to  be  gathered  from  facts  and 
circumstances,  his  declarations,  showing  such  intention,  whether  prior, 
contemporaneous,  or  subsequent,  may  be  proved  in  evidence. 

In  the  great  case  of  Sugden  v.  St.  Leonards,  1  P.  D.  154,  the  ques- 
tion underwent  full  discussion,  in  1876,  whether  written  and  oral  dec- 
larations made  by  a  testator,  both  before  and  after  the  execution  of 
his  will  are,  in  the  event  of  its  loss,  admissible  as  secondary  evidence 
of  its  contents;  and  it  was  decided  in  the  affirmative.  It  was  admit- 
ted in  the  argument,  at  one  stage  of  the  discussion,  that  such  subse- 
quent declarations  would  be  admissible  to  rebut  a  presumption  of 
revocation  of  the  will;  but,  this  being  afterwards  questioned,  it  was 
declared  and  held,  on  the  greatest  consideration,  not  only  that  these, 
but  also  that  declarations  as  to  the  contents  of  the  will,  were  admis- 
sible. See  pages  174,  198,  200,  214,  215,  219,  220,  225,  227,  228,  240, 
241.  The  case  of  Keen  v.  Keen,  L.  R.  3  P.  &  D.  105,  is  to  the  same 
effect.  See,  also,  Gould  v.  Lakes,  6  P.  D.  1 ;  Doe  v.  Allen,  12  A.  & 
E.  451 ;  Usticke  v.  Bawden,  2  Add.  Ecc.  123 ;  Welch  v.  Phillips,  1 
Moore,  P.  C.  299;  Whiteley  v.  King,  10  Jur.  (N.  S.)  1079;  Re  John- 
son's Will,  40  Conn.  587 ;  Lawyer  v.  Smith,  8  Mich.  411,  77  Am.  Dec. 
460;  Patterson  v.  Hickey,  32  Ga.  156;  1  Jarm.  Wills  (5th  Am.  Ed.  by 
Bigelow),  130,  133,  134,  142,  and  notes.  The  question  was  also  dis- 
cussed, and  many  cases  were  cited  in  Collagan  v.  Burns,  57  Me.  449, 
but  the  court  was  equally  divided  in  opinion.  Many,  though  not  all, 
of  the  cases,  which  at  first  sight  may  appear  to  hold  the  contrary, 
will  be  found  on  examination  to  hold  merely  that  the  direct  fact  of 
revocation  cannot  be  proved  by  such  declarations. 

The  result  is,  that,  in  the  opinion  of  a  majority  of  the  court,  the 
will  should  be  disallowed,  and  the  decree  of  the  probate  court  re- 
versed.^* 


STETSON  et  al.  v.  STETSON  et  al. 
(Supreme  Court  of  Illinois,  1903.    200  111.  601,  66  N.  E.  262,  61  L.  R.  A.  258.) 

Magruder,  C.  J."  *  *  *  The  sole  ground  upon  which  the  va- 
lidity of  the  will  of  December  3,  1897,  duly  admitted  to  probate,  is 
contested,  is  that  a  subsequent  will  was  executed  by  the  testator,  con- 
ic On  revival  by  the  revocation  of  the  revoking  will,  see  37  L.  R.  A.  575, 
note;  14  L.  R.  A.  (N.  S.)  937,  note;  4  Am.  &  Eng.  Ann.  Cas.  313,  note;  13 
Prob.  Rep.  Ann.  28,  note. 

iTThe  statement  of  facts  is  omitted,  and  part  only  of  the  opinion  is  given. 


Ch.   8)  THE    REPUBLICATION    AND   REVIVAL,   OF    WILLS.  373 

taining  a  clause  revoking  all  former  vi^ills.  Such  subsequent  will,  al- 
leged to  have  been  executed  between  September  1,  1898,  and  the  death 
of  the  testator,  has  been  lost  or  destroyed ;  or,  at  any  rate,  it  was  not 
found  in  the  possession  of  the  testator,  and  has  never  been  produced, 
either  for  probate  in  the  county  court,  or  otherwise. 

The  question  presented  for  our  consideration,  and  raised  by  the 
refusal  of  the  court  below  to  hold  as  law  the  propositions  submitted 
by  the  appellants,  and  by  the  rulings  of  the  court  below  in  the  admis- 
sion and  exclusion  of  evidence,  is  twofold  in  its  character,  and,  as 
formulated  in  the  briefs  of  counsel  on  both  sides,  may  be  thus  stated: 
If  the  second  will  made  by  Jesse  Stetson  contained  an  express  clause 
of  revocation,' did  such  clause  operate  at  once,  and  of  its  own  force,  to 
immediately  revoke  and  annul  the  first  will,  made  on  December  3, 
1897;  and  did  the  loss  or  destruction  of  the  second  will,  containing 
such  clause  or  revocation,  even  though  such  loss  or  destruction  was 
the  act  of  the  testator  himself,  operate  to  revive  the  former  will  dated 
December  3,  1897?  Perhaps  in  no  branch  of  the  law  is  there  more 
conflict  among  the  decisions  of  the  courts  than  in  that  which  relates 
to  the  revocation  of  a  former  will  by  a  subsequent  will,  and  to  the  ef- 
fect of  the  cancellation  of  a  subsequent  revoking  will  in  reference 
to  the  revival  or  nonrevival  thereby  of  the  first  will. 

There  are  cases  which  hold — and  many  of  the  text-books  indorse 
and  sustain  the  holdings  of  such  cases — that  where  a  person,  having 
made  a  will,  afterwards  makes  another  will,  containing  a  clause  ex- 
pressly revoking  all  former  wills,  and  afterwards  destroys  the  second 
will,  and  dies,  leaving  the  former  will  uncanceled,  the  revoking  clause 
operates  instantaneously  to  effect  a  revocation ;  and  that,  consequently, 
the  destruction  of  the  second  will  does  not  revive  the  former  one.  1 
Underbill  on  Wills,  §  266;  Schouler  on  Wills,  §§  412^418;  James 
V.  Marvin,  3  Conn.  577 ;  Scott  v.  Fink,  45  Mich.  241,  7  N.  W.  799 ; 
Cheever  v.  North,  106  Mich.  390,  64  N.  W.  455,  37  L.  R.  A.  561,  58 
Am.  St.  Rep.  499 ;  Hawes  v.  Nicholas,  72  Tex.  481,  10  S.  W.  558,  2 
L.  R.  A.  863;  Pickens  v.  Davis,  134  Mass.  252,  45  Am.  Rep.  322; 
Barksdale  v.  Hopkins,  23  Ga.  332. 

Many  of  the  cases  which  thus  hold  that  the  loss  or  destruction  by 
the  testator  himself  of  a  subsequent  will  containing  a  revoking  clause 
does  not  revive  a  former  will,  though  found  in  the  possession  of  the 
testator,  uncanceled,  at  his  death,  are  based  upon  statutes  dissimilar 
to  the  Illinois  statute  upon  this  subject,  and  upon  considerations  which 
have  no  force  or  application  in  this  state  and  under  our  decisions.  In 
England  what  is  known  as  the  "Statute  of  Victoria,"  passed  in  1837, 
provided  (chapter  26,  §  22)  that  "no  will  or  codicil,  or  any  part  there- 
of, which  shall  be  in  any  manner  revoked,  shall  be  revived  otherwise 
than  by  the  re-execution  thereof,  or  by  a  codicil  executed  in  manner 
hereinbefore  required,  and  showing  an  intention  to  revive  the  same," 
etc.  29  Am.  &  Eng.  Ency.  of  Law,  p.  289,  note  2.  Some  13  of  the 
American  states  have  adopted  either  the  statute  of  Victoria  or  a  sim- 


374  LAST   WILLS    AND    TESTAMENTS.  (Part  1 

ilar  statute  upon  this  subject.  But  no  such  statute  was  ever  passed 
or  adopted  in  this  state. 

In  some  of  the  cases  a  distinction  is  drawn  between  a  subsequent 
will,  whose  provisions  are  inconsistent  with  the  former  will,  thereby- 
operating  to  effect  a  revocation  by  implication,  and  a  subsequent  will 
which  contains  a  clause  expressly  revoking  all  former  wills.  This 
distinction,  however,  is  done  away  with  under  the  terms  of  the  Illinois 
statute.  Section  17  of  the  Illinois  statute  of  wills  provides  as  fol- 
lows :  "No  will,  testament  or  codicil  shall  be  revoked,  otherwise  than 
by  burning,  canceling,  tearing  or  obliterating  the  same,  by  the  testator 
himself,  or  in  his  presence,  by  his  direction  and  consent,  or  by  some 
other  will,  testament  or  codicil  in  writing,  declaring  the  same,  signed 
by  the  testator  or  testatrix,  in  the  presence  of  two  or  more  witnesses, 
and  by  them  attested  in  his  or  her  presence ;  and  no  words  spoken 
shall  revoke  or  annul  any  will,  testament  or  codicil  in  writing,  ex- 
ecuted as  aforesaid,  in  due  form  of  law."  3  Starr  &  C.  Ann.  St.  (2d 
Ed.)  pp.  4044,  4045. 

By  the  terms  of  this  statute  the  subsequent  will,  which  shall  have 
the  effect  of  revoking  a  former  will,  must  be  a  will  "declaring  the 
same" ;  that  is  to  say,  must  be  a  will  which,  upon  its  face  and  by  its 
terms,  declares  a  revocation.  If  the  will  must  expressly  contain  a 
clause  revoking  all  former  wills,  the  question  as  to  any  inconsistency 
between  the  provisions  of  the  later  will  and  the  former  will  is  imma- 
terial. 

Again,  many  of  the  cases  are  based  upon  statutes  which  authorize 
the  revocation  of  a  will  to  be  made  by  a  subsequent  writing  which  is 
not  necessarily  a  will,  or  testamentary  in  its  character.  A  large  part 
of  the  American  legislation  upon  this  subject  has  its  basis  in  the  Eng- 
lish statute  of  frauds,  by  one  of  the  provisions  of  which  "no  devise 
in  writing  of  lands,  tenements  or  hereditaments,  nor  any  clause  there- 
of, shall  be  revocable  otherwise  than  by  some  other  will  or  codicil  in 
writing,  or  other  writing  declaring  the  same,"  etc.  1  Underbill  on 
Wills,  §  247.  It  will  be  noticed  that  by  the  terms  of  this  statute  a 
devise  in  writing  of  lands,  etc.,  may  be  revoked,  not  only  by  some 
other  will  or  codicil  in  writing,  but  by  some  "other  writing  declaring 
the  same";  in  other  words,  the  writing  declaring  the  revocation  may 
be  some  other  writing  than  a  will  or  codicil.  Where  the  instrument 
of  revocation  is  not  necessarily,  by  the  terms  of  the  statute,  a  will,  it 
may  have  the  effect  of  operating  instantaneously,  so  as  to  effect  a 
revocation  before  the  death  of  the  testator;  and  if  the  instrument  of 
revocation  may  be  in  writing,  it  will  make  no  difference  that  its  terms 
are  embodied  in  a  will,  rather  than  in  some  other  writing,  which  is  not 
a  will. 

For  example,  one  of  the  cases  relied  upon  by  counsel  for  appellants 
to  support  their  contention  upon  this  subject  is  the  case  of  In  re  Cun- 
ningham, 38  Minn.  1G9,  36  N.  W.  269,  8  Am.  St.  Rep.  650,  where  the 


Ch.   8)  THE    REPUBLICATION    AND    REVIVAL    OF    WILLS.  875 

court  say:  "The  testator  might  effectually  revoke  his  former  will  by 
a  writing  so  declaring,  and  executed  as  this  instrument  was  executed 
(Gen,  St.  1878,  c.  47,  §  9),  as  he  might  also  by  other  means."  By 
reference  to  section  9  of  chapter  47  of  the  General  Statutes  of  Min- 
nesota of  1878  it  is  found  that  a  will  may  be  revoked  "by  some  will, 
codicil  or  other  writing  signed,  attested  and  subscribed  in  the  manner 
provided  for  the  execution  of  a  will."  By  section  17,  however,  of  the 
Illinois  statute  of  wills,  the  revocation  must  be  by  a  will  declaring  such 
'revocation,  and  not  by  some  other  writing  than  a  will,  which  may  not 
be  testamentary  in  its  character.  So,  also,  in  Cheever  v.  North,  106 
Mich.  393,  64  N.  W.  455,  37  L.  R.  A.  561,  58  Am.  St.  Rep.  499,  it 
appears  that  by  the  terms  of  the  Michigan  statute  a  former  will  may  be 
revoked  not  only  by  a  subsequent  will,  but  "by  some  other  writing 
signed,  attested  and  subscribed  in  the  manner  provided  in  this  chap- 
ter for  the  execution  of  a  will."  The  case  of  Scott  v.  Fink,  45  Mich. 
241,  7  N.  W.  799,  is  based  largely  upon  the  case  of  James  v.  Marvin, 
3  Conn.  576 ;  but  the  latter  case  of  James  v.  Marvin  has  been  mate- 
rially weakened,  if  not  actually  overruled,  by  the  subsequent  case  of 
Peck's  Appeal  from  Probate,  50  Conn.  563,  47  Am.  Rep.  685. 

In  Peck's  Appeal  from  Probate,  supra,  the  criticism  of  James  v. 
Marvin,  supra,  made  by  Redfield  in  his  work  on  Wills,  is  referred 
to  and  quoted ;  and  there  the  Supreme  Court  of  Connecticut  say : 
"The  weight  of  authoritv  seems  to  be  in  harmonv  with  the  views 
expressed  by  Mr.  Redfield.  *  *  *  The  testatrix,  by  execiiting 
the  second  will,  evinced  no  intention  to  become  intestate,  but  rather 
a  contrary  intention.  By  destroying  the  last  will  and  carefully 
preserving  the  first  she  affords  satisfactory  evidence  that  she  in- 
tended until  the  very  last  to  die  testate,  and  that  that  should  be  her 
will.  In  the  absence  of  an  express  provision  to  that  effect,  we  can- 
not presume  that  the  legislature  intended  that  the  mere  execution 
of  a  will  should  in  all  cases  revoke  a  prior  will.  Such  a  construc- 
tion would  in  many  cases  defeat  the  manifest  intention  of  the  testator. 
The  statute  requires  a  'later  will  or  codicil.'  We  think  that  means  an 
operative  will  or  codicil.  *  *  *  \Ye  would  say,  however,  that  we 
have  carefully  examined  the  cases  cited  by  the  counsel  for  the  appel- 
lees, and  find  that  many  of  them  are  cases  in  which  the  later  wills 
became  operative  as  wills;  and,  of  course,  the  language  of  the  courts 
must  be  interpreted  with  reference  to  that  circumstance,  and  cannot 
properly  be  applied  to  a  case  like  this." 

So,  also,  in  the  case  of  Barksdale  v.  Hopkins,  23  Ga.  340,  it  ap- 
pears that  under  the  statute  of  Georgia  a  will  may  be  revoked  "by 
some  other  will  or  codicil  in  writing,  or  other  writing  of  the  devisor, 
signed  in  the  presence  of  three  or  four  witnesses  declaring  the  same." 
Under  the  Georgia  statute,  not  only  may  the  revocation  be  by  an  in- 
strument not  testamentary  in  its  character,  but  Georgia  is  one  of  the 
states  which  has  adopted  the  Victoria  statute,  or  a  statute  similar  to  the 


376  LAST    WILLS    AND   TESTAMENTS.  (Part  1 

Victoria  statute,  above  quoted.  In  Virginia,  also,  section  22  of  the 
statute  of  Victoria,  1837,  is  in  force.  Rudisill's  Ex'r  v.  Rodes,  29 
Grat.  (Va.)  148.  In  Texas,  also,  where  the  doctrine  seems  to  prevail 
that  the  destruction  of  a  duly  executed  will  containing  an  express 
revocation  of  a  former  will  does  not  have  the  effect  of  reviving  the 
former  will,  the  statute  provides  that  a  will  may  be  revoked  "by  subse- 
quent will,  codicil  or  declaration  in  writing  executed  with  like  formal- 
ities," etc.  Hawes  v.  Nicholas,  72  Tex.  483,  10  S.  W.  558,  2  L.  R. 
A.  863. 

It  being  established,  then,  that  under  section  17  of  the  Illinois  statute 
of  wills  a  former  will  can  only  be  revoked  by  a  subsequent  will,  de- 
claring the  revocation  of  all  former  wills,  and  not  by  a  subsequent 
instrument  in  writing  not  testamentary  in  character,  which  declares 
the  revocation  of  the  former  will,  it  cannot  be  said  that,  in  this  state 
the  destruction  of  a  duly  executed  will  containing  an  express  revoca- 
tion of  a  former  will  does  not  have  the  effect  of  reviving  the  former 
will.  We  have  held  that  "a.  will  takes  effect  at  the  death  of  the  tes- 
tator." Scofield  v.  Olcott,  120  111.  362,  11  N.  E.  351.  Indeed,  the 
general  doctrine  is  that  a  will  is  ambulatory,  and  has  no  effect  until 
the  death  of  the  testator.  It  follows  that  a  testamentary  paper,  which 
the  testator  permits  to  survive  him,  must  be  his  will.  A  will  is  in- 
operative and  ineffectual,  and  has  no  legal  existence,  until  it  is  con- 
summated by  death.  Taylor  v.  Taylor,  2  Nott  &  McC.  (S.  C.)  483. 
-  In  Marsh  v.  Marsh,  48  N.  C.  78,  64  Am.  Dec.  598,  it  is  well  said : 
"As  wills  are  ambulatory,  and  have  no  operation  until  the  death  of 
the  testator,  it  is  difficult  to  see  how  the  execution  of  a  second  will, 
which  is  afterwards  destroyed  by  the  testator,  can  in  any  wise  affect 
the  validity  of  the  will  previously  executed.  Both  are  inactive  during 
the  life  of  the  testator,  and  the  cancellation  of  the  second,  it  would 
seem,  must  necessarily  leave  the  first  to  go  into  operation  at  the  tes- 
tator's death.  Nor  is  it.  perceived  how  the  fact  that  the  second  con- 
tained a  clause  of  revocation  can  alter  the  case,  because  that  clause 
is  just  as  inactive  and  inoperative  as  the  rest  of  it,  and  so  continues 
up  to  the  time  that  the  whole  is  canceled.  This  principle  is  settled  in 
the  common-law  courts  in  England  in  regard  to  devises." 

In  Taylor  v.  Pegram,  151  HI.  106,  37  N.  E.  837,  we  said :  "As  a 
general  rule,  if  a  will  is  traced  into  the  testator's  possession,  and  at  his 
death  cannot  be  found,  the  presumption  is  (in  the  absence  of  circum- 
stances tending  to  show  a  contrary  conclusion)  that  he  destroyed  it 
animo  revocandi."  "Where  a  testator  has  a  will  in  his  own  custody, 
and  that  will  cannot  be  found  after  his  death,  the  presumption  is  that 
he  has  destroyed  it  himself.  It  cannot  be  presumed  that  the  destruc- 
tion has  taken  place  by  any  other  person  without  his  knowledge  or 
authority,  for  that  would  be  presuming  a  crime."  Rickards  v.  Mum- 
ford,  2  Phillim.  Ecc.  24 ;  29  Am.  &  Eng.  Ency.  of  Law,  p.  292,  note 
3.    See,  also,  Boyle  v.  Boyle,  158  111.  228,  42  N.  E.  140.    In  Boyle  v. 


Ch.    8)  THE    REPUBLICATION    AND    REVIVAL    OF    WILLS.  377 

Boyle,  supra,  it  was  held  that  a  will  will  be  presumed  to  have  been 
destroyed  by  the  testator  himself,  or  at  his  direction,  where  he  took  it 
from  the  custodian,  with  whom  it  had  been  for  several  months,  and 
carried  it  away,  and  it  could  not  be  found  after  his  death. 

In  the  case  at  bar  the  will  which  is  said  to  have  been  executed  by 
Jesse  Stetson  between  September  1,  1898,  and  his  death  on  April  27, 
1899,  is  shown  by  the  testimony  of  the  appellants  to  have  been  taken 
possession  of  by  him  as  soon  as  it  was  executed,  and  to  have  been  car- 
ried away  by  him  from  the  office  of  the  attorney  who  is  said  to  have 
drawn  it;  nor  could  it  be  found  among  his  papers  or  elsewhere  after 
his  death.  It  is  to  be  presumed,  therefore,  that  Jesse  Stetson  de- 
stroyed this  will  animo  revocandi.  If  he  destroyed  it  with  the  inten- 
tion of  canceling  or  revoking  it,  it  was  canceled  or  revoked  as  an 
entirety.  So  long  as  Jesse  Stetson  was  alive,  this  second  will  was 
merely  ambulatory,  and  had  no  operation,  and  could  have  no  opera- 
tion until  his  death.  While  it  was  thus  ambulatory,  and  before  his 
death,  the  presumption  is  that  he  destroyed  it,  and,  if  he  destroyed 
it,  the  clause  contained  in  it,  which  revoked  all  former  wills,  was  can- 
celed and  revoked,  as  well  as  the  balance  of  the  will.  It  necessarily 
results  that  the  former  will  of  December  3,  1897,  was  revived  when 
the  subsequent  will,  containing  the  revoking  clause,  was  canceled  or 
destroyed. 

Upon  this  subject  Redfield  in  his  work  on  Wills  (1  Redfield  on  the 
Law  of  Wills,  marg.  p.  328)  says:  "It  has  been  held  in  some  of  the 
American  courts  that  a  subsequent  will  containing  a  clause  of  revoca- 
tion, executed  with  due  solemnity  for  the  purpose  of  revoking  an  ex- 
isting will,  operates,  proprio  vigore,  and  instantaneously,  as  a  revoca- 
tion, and,  consequently,  that  the  destruction  of  the  second  will  did  not 
revive  the  former  one.  This  doctrine  has  an  air  of  plausibility  from 
the  fact  that  an  instrument  of  revocation  alone  would  unquestionably 
have  this  effect  so  long  as  it  was  allowed  to  remain  operative.  But 
that  would  show  a  present  purpose  of  becoming  intestate,  carried  into 
effect  as  far  as  practicable  before  death.  But  the  making  of  a  will 
with  a  revocatory  clause  is  very  different.  It  is  but  substituting  one 
will  for  another.  And  the  revocatory  clause  is  made  dependent  in 
some  sense  upon  the  subsequent  will  going  into  operation.  And  there 
is  ordinarily  no  purpose  of  having  the  revocatory  clause  operate,  ex- 
cept upon  that  condition.  The  whole  instrument  is,  therefore,  ambu- 
latory, and  when  destroyed  it  all  ceases  to  have  any  operation.  And 
the  same  is  true  of  the  destruction  of  a  will  merely  revocatory  of  for- 
mer wills.  By  such  destruction,  the  former  wills,  if  in  existence,  be- 
come revived."  Peck's  Appeal  from  Probate,  50  Conn.  566,  47  Am. 
Rep.  685.     *     *    *        ■ 

Our  conclusion  is  that,  inasmuch  as  the  later  will  executed  by  the 
testator,  Jesse  Stetson,  must  be  presumed  to  have  been  destroyed  by 
him  in  his  lifetime,  this  loss  or  destruction  has  operated  as  a  revival 


378  LAST   WILLS    AND    TESTAMENTS.  (Part   1 

of  the  former  will  of  December  3,  1897,  although  the  later  will  con- 
tained a  revocatory  clause.    For  this  reason  the  court  below  commit- 
ted no  error  in  dismissing  the  bill  of  the  complainants.     *     *    * 
The  decree  of  the  circuit  court  is  affirmed.     Decree  affirmed.^* 


In  re  NOON'S  WILL. 

(Supreme  Court  of  Wisconsin,  1902.     115  Wis.  299,  91  N.  W   6T0,  9.5  Am.  St. 

Rep.  944.) 

Bardeen,  J.^^  Both  the  county  and  circuit  courts  founa  that  the 
second  will  executed  by  the  deceased  contained  a  clause  revoking  all 
former  wills.  This  fact  is  challenged  by  the  appellants,  but,  inasmuch 
as  all  the  testimony  in  the  case  on  that  subject  is  to  the  effect  that  such 
a  clause  was  contained  therein,  we  cannot  disturb  the  finding. 

Section  2290,  Rev.  St.  1898,  provides,  in  substance,  that  no  will 
shall  be  revoked  unless  by  burning,  tearing,  canceling,  or  obliterating 
the  same  with  intention  to  revoke,  or  by  some  other  will  or  codicil  in 
writing,  executed  as  the  law  requires.  Therefore,  where  a  second 
will  is  drawn  and  executed  with  the  formality  required  by  the  stat- 
ute, and  containing  an  unlimited  revocatory  clause,  all  former  wills 
are  wiped  out,  and  held  for  naught.  The  operation  of  the  revocatory 
clause  is  immediate  and  absolute.  It  is  an  act  done  solemnly  and  de- 
liberately for  present  effect,  and  not  one  contemplating  that  future  cir- 
cumstances are  to  determine  whether  it  shall  have  force. 

As  stated  by  the  court  in  Scott  v.  Fink,  45  Mich.  241,  7  N.  W.  799 : 
"It  operates  at  once,  and  does  not  apply  as  a  mere  contingent  caveat 
against  the  objects  at  which  it  was  aimed."  The  addition  of  the  revo- 
catory words  is  a  mode  of  immediate  cancellation  of  the  former  will, 
and  renders  it  totally  inoperative  as  a  testamentary  instrument.  See 
Cheever  v.  North,  106  Mich.  390,  64  N.  W.  455,  37  L.  R.  A.  561,  58 
Am.  St.  Rep.  499 ;  Dudley  v.  Gates,  124  Mich.  440,  83  N.  W.  97,  86 
N.  W.  959;  In  re  Goods  of  Hodgkinson  [1893]  Prob.  Div.  339.  By 
the  great  weight  of  authority  in  this  country  the  destruction  or  revo- 
cation of  the  subsequent  will  containing  the  revocatory  clause  does 
not  have  the  effect  of  reviving  the  former  will.  Cassoday,  Wills,  § 
386,  and  authorities  cited.  Therefore  the  fact  that  the  second  will 
drawn  by  the  testator  was  destroyed,  or  could  not  be  found  after  his 
death,  did  not  revive  or  give  legal  vitality  to  the  former  one. 

The  question  next  arises  whether  there  is  anything  in  the  case  to 
show  that  the  former  will  has  been  revived  in  such  a  way  as  to  war- 

• 

18 So  in  Bates  v.  Hacking,  29  R.  I.  1,  G8  Atl.  G22.  14  L.  R.  A.  (N.  S.)  937 
(1908),  thie  court  liolds  that,  wliile  a  revocation  by  a  writing  which  is  not  a 
will  takes  effect  at  once,  a  revocation  hy  will  does  not  take  effect,  no  matter 
what  the  testator's  intentions  may  be,  imless  the  will  becomes  effective  oil 
the  testator's  death. 

i»  The  statement  of  facts  and  a  part  of  the  opinion  are  omitted. 


Ch.   8)  THE    REPUBLICATION   AND   REVIVAL,   OF  WILLS.  379 

rant  tbe  court  in  admitting  it  to  probate  as  a  legal  will.  *  *  *  We 
start  with  the  assumption  that  the  first  will  had  been  duly  revoked, 
and  was  not  revived  by  the  loss  or  destruction  of  the  second.  The 
first  will  was  then  without  any  legal  validity.  The  situation  was  the 
same  as  though  it  had  never  been  written.  Section  2282  provides 
that  no  will  made  within  this  state  since  January  1,  1896  (except  nun- 
cupative wills),  shall  be  effectual  to  pass  any  estate,  unless  it  be  in 
writing,  signed  by  the  testator,  or  by  some  one  authorized  by  him,  and 
attested  in  the  presence  of  the  testator  by  at  least  two  witnesses  in 
the  presence  of  each  other. 

This  court  has  decided  that  it  is  not  necessary  to  the  validity  of  a 
will  that  the  witnesses  thereto  should  know  the  nature  of  the  instru- 
ment they  are  signing ;  nor  is  it  necessary  to  the  probate  thereof  that 
they  should  testify  that  the  testator  declared  it  to  be  his  will.  Allen 
V.  Griffin,  69  Wis.  529,  35  N.  W.  21;  Skinner  v.  Society,  92  Wis. 
209,  65  N.  W.  1037.  The  will,  however,  must  be  executed  in  sub- 
stantial conformity  to  the  statutory  requirements,  to  be  valid.  The 
first  will  having  become  legally  dead  by  revocation,  we  can  see  no 
way  in  which  it  could  be  revitalized  except  by  some  act  which  the 
law  recognizes  as  being  equivalent  to  execution  under  the  statute.  A 
codicil  or  subsequent  writing  adopting  the  former  will,  duly  executed, 
or  a  re-execution  of  the  old  will  with  the  required  formalities,  would 
undoubtedly  revive  it.  See  Skinner  v.  Society,  supra ;  Flood  v.  Ker- 
win,  113  Wis.  673,  89  N.  W.  845. 

Any  act  short  of  that  would  lead  to  confusion,  and  open  the  door 
to  fraud.  The  Legislature,  having  seen  fit  to  prescribe  in  definite 
terms  the  manner  in  which  a  will  shall  be  executed  to  be  valid,  have 
indicated  a  policy  which  ought  not  to  be  frittered  away  by  evasions 
or  exceptions.  We  are  aware  that  there  are  cases  in  the  books  and 
cited  by  appellants'  counsel  which  say  that  the  question  of  reviving  a 
will  is  simply  one  of  what  the  testator  intended.  That  question,  no 
doubt,  may  be  involved  in  many  cases ;  still  it  cannot  be  permitted  to 
override  or  annul  plain,  statutory  requirements.  To  make  a  valid  tes- 
tamentary disposition  of  property,  there  must  be  substantial  conform- 
ity to  all  statutory  requirements. 

We  believe  the  better  and  safer  rule  to  be  to  require  that  a  will 
once  revoked,  to  be  revived,  must  either  be  re-executed  or  adopted  by 
some  subsequent  writing  executed  as  the  statute  requires.  Gary,  Prob. 
Law,  §  172.    The  judgment  is  affirmed.^** 

2  0  In  Danley  v.  Jefferson.  150  Mich.  590,  114  N.  W.  470,  121  Am.  St.  Rep. 
&40  (1908),  the  court  explained  that  in  Michigan,  -where  publication  is  not 
required  in  the  execution  of  a  will,  a  revival  of  a  revoked  will  can  take  place 
only  where  the  testator's  intention  to  revive  the  revoked  will  is  "expressed  in 
writing,  formally  sufficient  to  satisfy  the  statute."  The  majority  opinion 
added  (150  Mich.,  at  page  596,  114  N.  W.,  at  page  472  [121  Am.  St.  Rep.  640]): 
"This  court,  having  declined  to  follow  the  rule  of  the  English  law  courts,  is 
not  relegated  of  necessity  to  that  of  the  ecclesiastical  tribunals." 


380  LAST   WILLS   AND    TESTAMENTS.  (Part   1 

CHEEVER  et  al.  v.  NORTH  et  al. 

(Supreme  Court  of  Michigan,  1895.     106  Mich.  390,  64  N.  W.  455,  37  L.  R.  A. 

561,  58  Am.  St.  Rep.  499.) 

Montgomery,  J.^^  This  is  an  appeal  from  the  judgment  of  the 
circuit  court  probating  the  will  of  Merchant  H.  Goodrich,  who  died 
February  19,  1893.  The  will  probated  bore  date  May  12,  1888.  It 
was  in  testimony,  and  not  disputed,  that  deceased,  in  December,  1888, 
or  January,  1889,  executed  another  will,  to  which  Dr.  John  Green- 
shields  and  R.  L.  Parkin  were  witnesses.  There  was  also  testimony 
tending  to  show  that  the  will  offered  for  probate  was  found  among 
the  papers  of  deceased,  and  that  no  other  will  or  codicil  was  found. 

The  jury  found,  in  answer  to  special  questions,  that  the  Greenshields 
and  Parkin  will  was  destroyed  by  decedent,  and  that  a  codicil,  of 
which  an  abstract  was  in  evidence  in  the  case,  was  executed  as  a  codi- 
cil to  the  will  offered  for  probate,  and  that  Goodrich  also  destroyed 
this  codicil.  The  jury  further  found  that  the  subsequent  will,  known 
as  the  "Greenshields  and  Parkin  Will,"  was  executed  by  Goodrich, 
and  that  it  made  a  complete  disposition  of  his  estate.  There  was  no 
finding  by  the  jury,  nor  was  there  any  evidence,  upon  the  subject  of 
whether  the  subsequent  will  contained  a  revocation  of  the  prior  will, 
in  terms. 

1.  The  circuit  judge  charged  the  jury,  in  effect,  that  a  second  will, 
which  contained  an  express  revocation  of  a  prior  will,  would  have  the 
effect  to  revoke  it,  but  that,  if  the  later  will  contained  no  clause  re- 
voking the  former  will,  the  subsequent  destruction  of  the  later  will 
by  the  testator  would  revive  the  former  will.  There  is  an  irreconcil- 
able conflict  of  authority  upon  the  question  of  the  eft'ect  of  the  de- 
struction of  a  second  or  subsequent  will  upon  an  eai:lier  one.  The 
great  weight  of  authority  is  to  the  effect  that  the  execution  of  a  sub- 
sequent will,  containing  an  express  clause  revoking  the  former  will, 
operates  as  a  revocation  at  once,  and  that  the  former  will  thus  re- 
voked cannot  be  subsequently  revived,  except  by  republication,  and 
is  not  renewed  by  a  destruction  of  the  later  will.  James  v.  Marvin, 
3  Conn.  576;  Pickens  v.  Davis,  134  Mass.  252,  45  Am.  Rep.  322; 
Scott  v.  Fink,  45  Mich.  241,  7  N.  W.  799,  and  cases  cited. 

But  we  think  the  weight  of  authority,  and  also  the  previous  expres- 
sions of  this  court  in  Scott  v.  Fink,  favor  the  doctrine  that,  as  to  a 
will  containing  no  express  clause  of  revocation,  it  does  not  have  the 
effect,  of  its  own  force,  to  revoke  the  former  will,  and  that  the  de- 
struction of  such  later  will  effects  a  revival  of  the  earlier  will.  The 
cases  which  maintain  this  doctrine  rest  upon  the  ground  that  all  wills 
are,  in  their  nature,  ambulatory  until  the  testator's  death,  at  which 


«i  Part  only  of  the  opinion  Is  given. 


Ch.  8)  THE    REPUBLICATION   AND    REVIVAL   OF   WILLS.  381 

time,  and  not  before,  the  testament  becomes  operative.  Flintham  v. 
Bradford,  10  Pa.  82 ;  Peck's  Appeal,  50  Conn.  562,  47  Am.  Rep.  685 ; 
Simmons  v.  Simmons,  26  Barb.  (N.  Y.)  77;  and  cases  cited  supra. 

We  are  cited  to  the  statute  (section  5793,  How.  St.)  which  pro- 
vides: "No  will,  nor  any  part  thereof,  shall  be  revoked,  unless  by 
burning,  tearing,  canceling  or  obliterating  the  same,  with  the  inten- 
tion of  revoking  it,  by  the  testator  or  by  some  person  in  his  presence 
and  by  his  direction,  or  by  some  other  will  or  codicil,  in  writing,  ex- 
ecuted as  prescribed  in  this  chapter ;  or  by  some  other  writing,  signed, 
attested  and  subscribed  in  the  manner  provided  in  this  chapter  for 
the  execution  of  a  will."  And  it  is  urged,  with  much  show  of  plaus- 
ibility, that  the  execution  of  a  new  will  operates,  under  this  statute, 
to  revoke  the  former  will.  Such,  however,  is  not  the  strict  reading. 
If,  at  the  common  law,  a  will  duly  executed  is  ambulatory,  and  is  held, 
for  the  purposes  of  this  question,  to  take  effect  only  at  the  death  of 
the  testator,  we  think  the  statute  should  be  construed  as  having  ref- 
erence to  the  common-law  rule.  The  revocation  may  be  by  some  other 
will,  but.  it  occurs  when  the  will  takes  effect,  not  when  executed.  This 
statute  no  more  than  declares  the  common  law  on  the  subject.    *    *    * 

2.  The  burden  of  proof  is  upon  a  party  who  asserts  that  the  later 
will  contains  a  clause  of  revocation.  Thornt.  Lost  Wills,  162 ;  1 
Beach,  Wills,  73;  Caemen  v.  Van  Harke,  33  Kan.  333,  6  Pac. 
620.    *    *    * 

Other  questions  are  presented  by  the  appeal  of  the  contestants, 
which  we  have  examined,  but  deem  it  unnecessary  to  discuss  in  this 
opinion.  We  think  no  error  was  committed  to  the  prejudice  of  the 
contestants.     ♦     *    * " 

2  2  Compare  Danley  v.  Jefferson,  150  INIich.  590,  114  N.  W.  470;  121  Am.  St. 
Rep.  640  (1908).  But  in  Dougherty  v.  Holscheider.  40  Tex.  Civ.  App.  31,  88  S. 
W.  1113  (1905),  a  contingent  liolographic  will,  wliich  never  became  effective 
because  the  contingency  on  which  it  was  to  do  so  did  not  happen,  but  which 
was  inconsistent  with  a  prior  will,  was  held  to  have  revoked  the  prior  will, 
and  to  have  made  such  will  ineffective  without  a  republication. 

In  Newton  v.  Newton,  12  Ir.  Ch.  118  (1861),  it  was  held  that  a  will  revoked 
absolutely  by  another  will  and  thereafter  destroyed  by  the  testator  could 
not  be  revived  by  a  codicil,  though  the  codicil,  by  seeking  to  revive  it, 
evinced,  In  the  opinion  of  the  court,  an  intention  that  a  subsequent  will 
should  not  remain  a  will.  The  court  said:  "The  will  itself  had  been  de- 
stroyed. It  was  as  if  it  had  never  existed.  It  was  no  longer  in  rerum  natura, 
and  could  not,  therefore,  be  incorporated  with  the  codicil."  In  Rogers  v. 
Goodenough,  2  Sw.  &  Tr.  842,  350  (1862),  the  court  said  that  the  provision  of 
the  Wills  Act  that  "no  will  shall  be  valid  unless  it  he  in  writing  and  ex- 
ecuted in  the  manner  hereinafter  mentioned"  is  decisive  of  that  question,  be- 
cause "the  expression  'no  will  shall  be  valid'  applies  equally  to  an  original 
will  and  a  revived  will."  See,  also.  Hale  v.  Tokelove,  2  Rob.  Eec.  318  (1850) ; 
In  the  Goods  of  Steele,  L.  R.  1  P.  &  D.  575,  576,  577  (1868). 


382  LAST  WILLS  AND   TESTAMENTS.  (Part  1 

WILLIAMS  et  al.  v.  WILLIAMS. 
(Supreme  Judicial  Court  of  Massacliusetts,  1SS6.    142  Mass.  515,  8  N.  E.  424.) 

C.  Allen,  J.^^  There  was  proof,  satisfactory  to  the  mind  of  the 
justice  who  heard  the  case,  that  the  testator,  in  canceHng  his  last  will, 
intended  to  revive  the  former  one,  which  he  then  left  uncanceled; 
and  his  conclusion  of  fact  was  well  warranted  by  the  evidence.  Such 
proof  may  come  from  a  single  witness  (Brown  v.  Brown,  8  El.  & 
Bl.  876;  Burns  v.  Burns,  4  Serg.  &  R.  [Pa.]  297);  and,  being  found 
sufficient  to  establish  the  fact,  the  legal  result  follows  that  the  former 
will  is  thereby  revived  (see  Pickens  v.  Davis,  134  Alass.  252,  45  Am. 
Rep.  322,  and  authorities  there  cited;  2  Am.  Lead.  Cas.  [4th  Ed.] 
709  et  seq.).  The  fact  that  the  testator  executed  three  wills  at  dif- 
ferent times,  all  of  which  were  kept  by  him  for  a  time  uncanceled, 
and  that  when  he  executed  the  third  will  he  said  that  he  would  keep 
them  all  until  he  made  up  his  mind  which  he  wanted  to  keep,  and 
would  destroy  the  two  he  did  not  want,  did  not  have  the  legal  effect 
to  place  the  three  wills  on  an  equal  footing  of  unexecuted  and  unpub- 
lished wills. 

The  last  will,  if  left  unrevoked,  would  be  valid.    Decree  affirmed. 


JAMES  V.  SHRIMPTON. 

(High  Oouvt  of  Justice,  Probate  Division,  1876.    1  P.  D.  431.) 

Sir  J.  Hannen  (President). 2^  This  case  was  tried  before  me,  and 
the  following  facts  were  proved:  On  the  12th  of  October,  1871,  the 
testator  duly  executed  his  will,  and  on  the  3d  of  July,  1872,  he  mar- 
ried, whereby  his  will  was  revoked.  On  the  same  day,  and  after  his 
marriage,  he  executed  a  codicil,  in  which  he  made  a  provision  for  his 
wife;  and  the  codicil  contained  a  clause  to  this  effect:  "In  all  other 
respects  I  revive,  ratify,  and  confirm  my  said  will."  Afterwards  cir- 
cumstances occurred  by  reason  of  which  the  provisions  of  the  codicil 
failed,  and  it  is  probable  that  he  then  destroyed  it. 

The  question  for  my  consideration  is,  whether  the  destruction  of 
the  codicil  upon  which  the  revival  of  the  will  depended  has  left  the 
will  inoperative.  I  am  of  opinion  that  it  was  not  the  intention  of  the 
testator  to  leave  the  will  inoperative,  but  his  idea  was,  that  the  will, 
having  been  brought  into  existence  again,  remained  valid  notwith- 
standing the  destruction  of  the  codicil.  I  was  asked  to  grant  probate 
e)f  the  will  and  codicil  on  the  presumption  that  what  the  testator  had 
done  had  not  been  done  animo  revocandi.  Where  there  has  been  a 
physical  destruction  of  a  testamentary  paper  the  court  has  often  been 

23  Ttie  statement  of  facts  is  omitted. 


Ch.   8)  THE    REPUBLICATION    AND    REVIVAL   OF    WILLS.  383 

called  upon  to  form  an  opinion  as  to  the  intention  of  a  deceased  at 
the  time  he  did  the  act. 

In  this  case  I  have  come  to  the  conclusion  that  the  testator  destroyed 
the  codicil  with  no  intention  of  revoking  the  will,  and  that  the  court 
should  give  no  more  effect  to  the  act  than  it  would  do  if  the  testator 
had  destroyed  the  paper  under  a  mistake  as  to  the  instrument  he  was 
destroying.  It. was  done  under  a  misconception  of  the  effect  of  the 
act ;  it  was  not  done  animo  revocandi,  and  I  therefore  decree  probate 
of  the  will  and  codicil. 


CROSBIE  V.  MACDOUAi;. 
(High  Court  of  Chancery,  1799.     4  Ves.  610.) 
See  ante,  p.  352,  for  a  report  of  the  case. 


GREEN  V.  TRIBE. 

(High  Court  of  Justice,  Chancery  Division,  1878.     9  Ch.  D.  231.) 
See  ante,  p.  354,  for  a  report  of  the  case. 


In  re  CAMPBELE. 
(Court  of  Appeals  of  New  York,  1902.    170  N.  T.  84,  62  N.  E.  1070.) 
See  ante,  p.  359,  for  a  report  of  the  case. 


PART  II 

DESCENT 


CHAPTER  I 
THE  NATURE  OF  DESCENT 


SECTION  1.— DESCENT  AND  CONSANGUINITY 


BLACKSTONE  ON  DESCENT. 

"The  methods  therefore  of  acquiring  on  the  one  hand,  and  of  losing 
on  the  other,  a  title  to  estates  in  things  real,  are  reduced  by  our  law 
to  two:  Descent,  where  the  title  is  vested  in  a  man  by  the  single 
operation  of  law;  and  purchase,  where  the  title  is  vested  in  him  by 
his  own  act  or  agreement. 

"Descent,  or  hereditary  succession,  is  the  title  whereby  a  man  on 
the  death  of  his  ancestor  acquires  his  estate  by  right  of  representation, 
as  his  heir  at  law.*  An  heir,  therefore,  is  he  upon  whom  the  law  casts 
the  estate  immediately  on  the  death  of  the  ancestor ;  and  an  estate,  so 
descending  to  the  heir,  is  in  law  called  the  inheritance.     *     *     * 

1  The  word  "descent"  is  here  used  in  its  technical  sense.  In  some  states  it 
is  given  a  wider  meaning. 

"It  is  true  that  the  word  'descent,'  in  its  technical,  legal  meaning,  denotes 
the  transmission  of  real  estate,  or  some  Interest  therein,  on  the  death  of  the 
owner  intestate,  by  inheritance,  to  some  person  according  to  certain  rules 
of  law.  In  such  meaning  it  is  distinguished  from  transmission  by  devise, 
which  is  technically  by  purchase,  and  also  from  the  transmission  of  personal 
property,  the  title  of  which  passes  to  the  administrator,  and,  after  the  pay- 
ment of  all  debts  and  claims  against  the  estate,  is  governed  by  certain  rules 
of  distribution.  If  the  meaning  of  the  term  'descent'  is  so  limited  to  its 
technical  significance,  the  provisions  of  the  act  relating  to  the  distribution 
of  personal  estate  are  not  within  such  meaning.  The  term  as  used  in  the 
act,  and  as  it  has  always  been  used  in  our  statutes,  includes  the  course  of 
transmission,  by  operation  of  law,  of  both  real  and  personal  property  when 
the  owner  dies  intestate,  or  his  estate  or  any  part  thereof  is  deemed  and 
taken  as  intestate  estate."  Cartwright,  J.,  in  Hudnall  v.  Ham,  172  111.  76, 
83,  84,  49  N.  E.  985,  987  (1898). 

On  the  statutes  of  descent  and  distribution,  in  the  United  States,  see  3 
Prob.  Rep.  Ann.  556,  note.  On  succession  to  estates  of  intestates  in  general. 
Bee  12  Am.  St.  Rep.  81-113,  note. 

(384) 


Ch.  1)  THE   NATURE    OF   DESCENT.  385 

"Consanguinity,  or  kindred,  is  defined  by  the  writers  on  these  sub- 
jects to  be  'vinculum  personarum  ab  eodem  stipite  descendentium' ; 
the  connection  or  relation  of  persons  descended  from  the  same  stock 
or  common  ancestor.    This  consanguinity  is  either  lineal,  or  collateral. 

"Lineal  consanguinity  is  that  which  subsists  between  persons,  of 
whom  one  is  descended  in  a  direct  line  from  the  other,  as  between  John 
Stiles  (the  propositus  in  the  table  of  consanguinity)  and  his  father, 
grandfather,  great-grandfather,  and  so  upwards  in  the  direct  ascend- 
ing line ;  or  between  John  Stiles  and  his  son,  grandson,  great-grand- 
son, and  so  downwards  in  the  direct  descending  line.  Every  genera- 
tion, in  this  lineal  direct  consanguinity,  constitutes  a  different  degree, 
reckoning  either  upwards  or  downwards.  The  father  of  John  Stiles 
is  related  to  him  in  the  first 'degree  and  so  likewise  is  his  son;  his 
grandsire  and  grandson  in  the  second ;  his  great-grandsire  and  great- 
grandson  in  the  third.  This  is  the  only  natural  way  of  reckoning  the 
degrees  in  the  direct  line,  and  therefore  universally  obtains,  as  well 
in  the  civil  and  canon,  as  in  the  common,  law.     *     *     * 

"This  lineal  consanguinity,  we  observe,  falls  strictly  within  the  def- 
inition of  vinculum  personarum  ab  eodem  stipite  descendentium ;  since 
lineal  relations  are  such  as  descend  one  from  the  other,  and  both  of 
course  from  the  same  common  ancestor. 

"Collateral  kindred  answers  to  the  same  description;  collateral  re- 
lations agreeing  with  the  lineal  in  this,  that  they  descend  from  the 
same  stock  or  ancestors,  but  differing  in  this,  that  they  do  not  descend 
one  from  the  other.  Collateral  kinsmen  are  such  then  as  lineally 
spring  from  one  and  the  same  ancestor,  who  is  the  stirps,  or  root,  the 
stipes,  trunk,  or  common  stock,  from  whence  these  relations  are 
branched  out.  As  if  John  Stiles  hath  two  sons,  who  hath  each  a  nu- 
merous issue;  both  these  issues  are  lineally  descended  from  John 
Stiles  as  their  common  ancestor;  and  they  are  collateral  kinsmen  to 
each  other,  because  they  are  all  descended  from  this  common  ances- 
tor, and  all  have  a  portion  of  his  blood  in  their  veins,  which  denomi- 
nates them  consanguineos. 

"We  must  be  careful  to  remember,  that  the  very  being  of  collateral 
consanguinity  consists  in  this  descent  from  one  and  the  same  common 
ancestor.  Thus  Titius  and  his  brother  are  related;  why?  because 
both  are  derived  from  one  father.  Titius  and  his  first  cousin  are 
related;  why?  because  both  descend  from  the  same  grandfather; 
and  his  second  cousin's  claim  to  consanguinity  is  this,  that  they  are 
both  derived  from  one  and  the  same  grandfather.  In  short,  as  many 
ancestors  as  a  man  has,  go  many  common  stocks  he  has,  from  which 
collateral  kinsmen  may  be  derived.     *     *     * 

"The  method  of  computing  these  degrees    (of   collateral   consan- 
guinity) in  the  canon  law,  which  our  law  has  adopted,  is  as  follows: 
We  begin  at  the  common  ancestor,  and  reckon  downwards ;    and  in 
whatsoever  degree  the  two  persons,  or  the  most  remote  of  them,  is 
GosT.  Wills— 25 


386  DESCENT.  (Part  2 

distant  from  the  common  ancestor,  that  is  the  degree  in  which  they 
are  related  to  each  other.  Thus  Titius  and  his  brother  are  related  in 
the  first  degree;  for  from  the  father  to  each  of  them  is  counted  only- 
one.  Titius  and  his  nephew  are  related  in  the  second  degree ;  for 
the  nephew  is  two  degrees  removed  from  the  common  ancestor — viz., 
his  own  grandfather,  the  father  of  Titius." 
2  Bl.  Com.  201-207. 


SECTION   2.— BLACKSTONE'S   CANONS   OF   DESCENT 


"The  nature  and  degrees  of  kindred  being  thus  in  some  measure 
explained,  I  shall  next  proceed  to  lay  down  a  series  of  rules  or  canons 
of  inheritance,  according  to  which  estates  are  transmitted  from  the 
ancestor  to  the  heir,  together  with  an  explanatory  comment,  remark- 
ing their  original  and  progress,  the  reasons  upon  which  they  are 
founded,  and  in  some  cases  their  agreement  with  the  laws  of  other 
nations. 

"I.  The  first  rule  is :  That  inheritance  shall  lineally  descend  to  the 
issue  of  the  person  who  last  died  actually  seised  in  infinitum,  but  shall 
never  lineally  ascend.^     *     *     * 

"11.  A  second  general  rule  or  canon  is :  That  the  male  issue  shall 
be  admitted  before  the  female.^    *     *     * 

"But  our  law  does  not  extend  to  a  total  exclusion  of  females,  as  the 
Salic  law,  and  others,  where  feuds  were  most  strictly  retained.  It 
only  postpones  them  to  males;    for  though  daughters  are  excluded 

2  "This  rule  was  changed  in  England,  by  St.  3  &  4  Wm.  IV,  c.  106,  whidi 
went  into  effect  In  1834.  The  rule  now  established  Is  that  inheritance  shall 
be  traced  from  the  last  purchaser  of  the  property ;  and  for  this  purpose  the 
person  last  entitled  to  the  property  shall  be  deemed  to  be  the  purchaser,  un- 
less it  be  proved  that  he  inherited  it.  The  ancient  maxim,  ''seisina  facit 
Btlpitem,''  is  therefore  entirely  abrogated.  The  person  'last  entitled  to  the 
property'  includes  the  last  person  who  had  a  right  thereto,  whether  he  did 
or  did  not  obtain  the  possession,  or  receive  the  rents  and  profits  thereof. 

"The  rule  that  inheritances  never  lineally  ascend  has  also  been  altered ;  and 
it  is  now  provided  that  an  inheritance  shall  descend  to  the  issue  of  the  last 
purchaser,  and  that,  on  failure  of  his  issue,  it  shall  pass  to  his  nearest  lineal 
ancestor,  or  the  issue  of  such  ancestor,  the  ancestor  taking  in  preference  to  his 
or  her  issue.  Paternal  ancestors  and  their  descendants  are  preferred  to  ma- 
ternal ancestors  and  their  descendants. 

"In  this  country,  the  doctrine,  'seisina  facit  stipitem,'-  has  also  been  abol- 
ished in  most,  if  not  all,  of  the  states,  and  an  estate  of  inheritance  passes  to 
the  heirs  of  the  person  who  last  had  the  right  of  ownership  therein;  and  it 
is  also  a  general  rule  that,  in  default  of  lineal  descendants,  lineal  ancestors 
inherit  in  preference  to  relatives  of  the  collateral  line.  But  collateral  rela- 
tives are  usually  admitted  after  a  father  or  mother,  in  preference  to  more 
remote  lineal  ancestors." — Chase's  Note. 

3  "This  canon  is  still  in  force  in  English  law,  but  does  not  prevail  in  the 
United  States,  where  it  is  the  established  rule  that  all  the  children  shall 
inherit  equally,  males  and  females  being  classed  together."— Chase's  Note. 


Ch.  1)  THE    NATURE   OF   DESCENT. 


387 


by  sons,  yet  they  succeed  before  any  collateral  relations;  our  law 
thus  steering  a  middle  course,  between  the  absolute  rejection  of  fe- 
males, and  the  putting  them  on  a  footing  with  males. 

"III.  A  third  rule  or  canon  of  descent  is  this:  That  where  there 
are  two  or  more  males,  in  equal  degree,  the  eldest  only  shall  inherit; 
but  the  females  all  together.*     *     *     * 

"IV.  A  fourth  rule,  or  canon  of  descent,  is  this :  That  the  lineal 
descendants,  in  infinitum,  of  any  person  deceased  shall  represent  their 
ancestor ;  that  is,  shall  stand  in  the  same  place  as  the  person  himself 
would  have  done,  had  he  been  living.^ 

"Thus  the  child,  grandchild,  or  great-grandchild  (either  male  or 
female)  of  the  eldest  son  succeeds  before  the  youngest  son,  and  so 
in  infinitum.  And  these  representatives  shall  take  neither  more  or 
less,  but  just  so  much  as  their  principals  would  have  done.     *     *     * 

"This  taking  by  representation  is  called  succession  in  stirpes,  ac- 
cording to  the  roots;  since  all  the  branches  inherit  the  same  share 
that  their  root,  whom  they  represent,  would  have  done.     *     *     * 

"V.  A  fifth  rule  is:  That  on  failure  of  lineal  descendants,  or  issue, 
of  the  person  last  seised,  the  inheritance  shall  descend  to  his  collateral 
relations,  being  of  the  blood  of  the  first  purchaser,  subject  to  the  three 
preceding  rules.®     *     *     * 

"VI.  A  sixth  rule  or  canon  therefore  is :  That  the  collateral  heir  of 
the  person  last  seised  must  be  his  next  collateral  kinsman,  of  the  whole 
blood.'^     *     *     * 

4  "This  right  of  primogeniture  is  BOt  recognized  in  the  United  States.  No 
distinction  is  made  between  the  children  in  regard  to  their  interests  in  the 
estate  of  the  deceased."— Chase's  Note. 

~  5  "This  is  also  the  general  rule  in  the  law  of  descent  in  the  United  States, 
when  the  lineal  descendants  are  of  unequal  degrees  of  relationship  to  the 
common  ancestor  in  whose  estate  they  share.  But,  when  they  are  of  equal 
degrees  of  relationship,  they  take  per  capita;  1.  e.,  equally,  or  share  and 
share  alike."— Chase's  Note. 

6  "This  rule  is  now  modified  by  the  provision,  stated  in  a  previous  note, 
that  lineal  ancestors  shall  inherit  in  preference  to  collateral  kindred. 

"The  rule  generally  established  in  the  American  law  of  descent,  which  is 
most  closely  correspondent  to  this  English  rule,  is  that,  in  default  of  lineal 
descendants  or  ancestors  who  are  first  entitled  to  inherit  the  property,  the 
Inheritance  passes  to  collateral  relatives.  The  classes  of  relatives  who  shall 
inherit  in  such  a  case  are  specially  designated  by  the  statutes  of  the  several 
states,  and  there  is  cojisiderable  diversity  of  detail  in  the  provisions  of  such 
statutes." — Chase's  Note. 

7  "This  rule  has  also  been  altered  to  some  extent  by  St.  3  &  4  Wm.  IV,  C. 
106.  Relatives  of  the  half  blood  are  now  entitled  to  inherit  next  after  any 
relation  in  the  same  degree  of  the  whole  blood  and  his  issue,  when  the  com- 
mon ancestor  is  a  male,  and  next  after  the  common  ancestor,  when  the  com- 
mon ancestor  is  a  female. 

"In  this  counti-y,  there  is  much  diversity,  in  the  statutory  provisions  of 
different  states,  in  regard  to  inheritances  by  relatives  of  the  whole  and  of 
the  half  blood.  In  some  states,  no  distinction  is  made  between  those  two 
classes;  but,  in  the  larger  number,  relatives  of  the  half  blood  are  postponed 
to  those  of  the  whole  blood.  In  no  state,  however,  are  those  of  the  half  blood 
entirely  excluded  from  the  inheritance." — Chase's  Note. 

For  a  discussion  of  descent  and  distribution  among  kindred  of  the  half 
blood,  see  29  L.  R.  A.  541.  note. 


388  DESCENT.  (Part  2 

"VII.  The  seventh  and  last  rule  or  canon  is:  That  in  collateral 
inheritances  the  male  stocks  shall  be  preferred  to  the  female  (that  is, 
kindred  derived  from  the  blood  of  the  male  ancestors,  however  re- 
mote, shall  be  admitted  before  those  from  the  blood  of  the  female, 
however  near),  unless  where  the  lands  have,  in  fact,  descended  from  a 
female."  * 

2  Bl.  Com.  208-234. 


SECTION  3.— SEISIN  AND  DESCENT 


NORTH  V.  GRAHAM  et  al. 

(Supreme  Court  of  lUinois,  1908.     235  111.  178,  85  N.  K  267,  18  L.  R.  A.  [N. 

S.]  624,  126  Am.  St.  Rep.  189.) 

Carter,  J.'  This  is  an  action  in  ejectment  brought  by  appellee  in 
the  circuit  court  of  Edgar  county  against  appellants  to  settle  the  own- 
ership of  a  small  tract,  containing  about  a  quarter  of  an  acre  of  land, 
situated  in  that  county.  *  *  *  'j^j^g  court  entered  judgment,  hold- 
ing that  appellee  was  the  owner  of  and  entitled  to  the  possession  of 
the  property  in  question.  An  appeal  was  thereupon  prayed  to  this 
court. 

From  the  agreed  statement  of  facts  it  appears  that  Adam  Stewart 
died  in  1888,  intestate,  leaving  no  widow,  and  leaving  as  his  only  heirs 
at  law  his  three  daughters,  Martha  Stewart,  Demeris  Snyder,  and  the 
appellee,  Mary  North.  Martha  Stewart  died  in  1889,  unmarried  and 
without  children.  Demeris  Snyder  died  in  1892,  leaving  W.  W.  Sny- 
der, her  husband,  and  Myrtle  Snyder,  her  daughter  and  only  heir  at 
law.  Myrtle  Snyder  died  in  1898,  unmarried,  leaving  the  said  W.  W. 
Snyder,  her  father,  her  only  heir  at  law.  It  appears  that  Adam  Stewart 
and  his  wife  February  1,  1877,  made  a  deed  of  the  land  in  question  to 
the  trustees  of  a  Methodist  church  called  "Pilot  Class,"  of  Edgar 
county,  containing  this  provision :  "Said  tract  of  land  above  described 
to  revert  to  the  party  of  the  first  part  whenever  it  ceases  to  be  used  or 
occupied  for  a  meetinghouse  or  church."  On  July  10,  1886,  Adam 
Stewart  and  wife  quitclaimed  the  80-acre  tract  of  which  this  meeting- 
house piece  formed  a  part,  with  other  property,  to  his  brother,  James 
Stewart,  and  the  property  thereafter,  by  a  chain  of  conveyances,  was 
conveyed  from  James  Stewart  to  the  appellants  in  this  case.     *     *     * 

[The  court  then  discussed  the  question  of  the  nature  of  the  interest 

»This  general  rule  still  prevails  in  England,  though  somewhat  modified 
In  detail,  but  not  In  this  country.  In  some  states,  however,  lands  descended 
from  a  maternal  ancestor  go  to  kindred  in  the  maternal  line,  and  paternal 
Inheritances  to  paternal  kindred. — Chase's  Note. 

8  Part  only  of  the  opinion  is  given. 


Ch.  1)  THE    NATURE    OF   DESCENT.  389 

left  in  Adam  Stewart  after  his  deed  to  the  church  and  decided  that  it 
was  not  a  reversion,  but  merely  a  possibility  of  reverter,  and  concluded 
that  discussion  as  follows:] 

It  is  clear  from  these  authorities  that  the  right  remaining  in  the 
grantor,  Adam  Stewart,  after  he  had  given  the  deed  to  the  church 
organization  (so  long  as  it  was  a  mere  possibility  of  reverter),  was 
not  one  that  he  could  convey  or  assign,  and  hence  his  quitclaim  deed 
given  thereafter  to  his  brother  conveyed  no  interest  of  any  kind  or 
nature  in  the  land  in  question.  Presbyterian  Church  v.  Venable  [159 
111.  315,  42  N.  E.  836,  50  Am.  St.  Rep.  159], 

Appellants  make  the  further  contention  that,  even  though  the  deed 
in  question  reserved  in  the  grantor  and  his  heirs  only  the  possibility 
of  a  reverter,  still  the  court  should  not  have  entered  judgment  in  favor 
of  appellee  for  all  the  premises;  that  the  three  daughters  of  Adam 
Stewart  succeeded  him,  at  his  death,  in  the  ownership  of  this  possibili- 
ty of  reverter;  that  one  daughter,  Martha  Stewart,  died  unmarried, 
without  children,  leaving  her  sisters,  Demeris  Snyder,  and  appellee, 
who  succeeded  her  as  owners  of  her  interest  in  this  possibility  of  re- 
verter ;  and  that  Demeris  Snyder's  interest  descended  to  her  daughter. 
Myrtle,  and  through  her  to  her  father,  WilHam  W.  Snyder,  who  has 
since  conveyed  whatever  interest  he  had  to  appellants.  The  authori- 
ties lay  down  the  rule  that  the  possibility  of  reverter,  while  it  cannot 
be  alienated  or  devised  by  the  grantor,  may  "descend  to  his  heirs." 
Presbyterian  Church  v.  Venable,  supra. 

Did  the  land  in  question  revert  or  descend  to  the  grantor's  heirs 
who  were  in  existence  at  the  time  of  his  death,  or  to  his  heirs  who  were 
in  existence  at  the  time  the  fee  in  question  terminated?  The  authori- 
ties do  not  appear  to  discuss  this  precise  question.  The  right  or  in- 
terest under  the  possibility  of  reverter  is  very  like,  though,  as  we  have 
seen,  not  strictly  identical  with,  a  reversion.  Kales  on  Future  Inter- 
ests, §  1.  In  1  Preston  on  Estates,  445,  it  is  stated  "that  succession 
by  heirship  to  these  determinable  fees  is  in  the  same  order  and  under 
the  same  rules  as  the  succession  to  estates  in  fee  simple."  Under  the 
common  law  the  reversion  descended  to  the  heirs  of  the  person  who 
was  last  seised  in  fee.  Tiedeman  on  Real  Prop.  (3d  Ed.)  §  293;  4 
Kent's  Com.  *388.  Though  the  law  passed  an  inheritance  to  the  heir 
immediately  upon  the  ancestor's  death,  he  thereby  only  acquired  a 
seisin  in  law,  and  this  alone  would  not  enable  him  to  transmit  the 
inheritance  to  his  heirs.  He  must  have  obtained  an  actual  seisin  or 
possession  or  seisin  in  deed,  according  to  the  maxim,  "Seisina  facit 
stipitem,"  as  contradistinguished  from  a  seisin  in  law,  in  order  to 
make  the  estate  transmissible  to  his  heirs.  27  Am.  &  Eng.  Ency.  of 
Law  (2d  Ed.)  297.  This  common-law  doctrine  was  followed  by  the 
courts  in  early  decisions  of  some  of  our  states,  but  was  repudiated  by 
many,  and  has  now  been  abrogated  in  most,  if  not  all,  so  that  "rever- 
sions and  remainders  vested  by  descent  pass  to  the  heirs  in  like  man- 


390  DESCENT.  (Part  2 

ner  as  other  estates,  and  no  distinction  is  made  between  estates  in 
possession  and  in  reversion."  4  Kent's  Com.  *389 ;  Tiedeman  on 
Real  Prop.  (3d  Ed.)  §  293. 

The  laws  of  this  state  governing  devises  and  descent  of  property- 
are  wholly  statutory,  as  none  of  the  common-law  provisions  relating 
thereto  are  now  in  force  in  Illinois.  Kochersperger  v.  Drake,  167  111. 
123,  47  N.  E.  321,  41  L.  R.  A.  446 ;  In  re  Mulford,  217  111.  242,  75 
N.  E.  345,  1  L.  R.  A.  (N.  S.)  341,  108  Am.  St.  Rep.  249;  Collins  v. 
Metropolitan  Life  Ins.  Co.,  232  111.  37,  83  N.  E.  542,  14  L.  R.  A.  (N. 
S.)  356,  122  Am.  St.  Rep.  54.  The  right  or  interest  remaining  under 
the  said  deed  in  the  grantor,  Adam  Stewart,  as  we  have  seen,  was 
such  a  right  or  interest  as  descended  to  his  heirs.  Our  statute  on  de- 
scent states  that  "estates,  both  real  and  personal,  of  resident  and  non- 
resident proprietors  in  this  state  dying  intestate  *  *  *  shall  de- 
scend," etc.  The  word  "estate"  is  used  with  a  variety  of  meanings. 
16  Cyc.  599.  In  its  primary  and  technical  sense  it  referred  only  to 
an  interest  in  land,  and  doubtless  that  was  its  meaning  under  the  com- 
mon-law definition  of  possibility  of  reverter.  In  our  statutes  control- 
ling descent  and  devise  of  property  it  undoubtedly  refers  to  all  inter- 
ests in  property  to  which  the  deceased  shall  be  entitled. 

In  Greenwood  v.  Greenwood,  178  111.  387,  398,  53  N.  E.  101,  102, 
we  held :  "The  word  'estate'  has  a  broad  signification,  and  would,  of 
course,  be  sufficient  to  pass  personalty."  Real  and  personal  property, 
under  our  statutes,  are  treated  together  for  the  purpose  of  tracing 
descent.  This  common-law  doctrine  to  which  we  have  just  referred 
never  had  any  relation  to  the  distribution  of  personal  property.  We 
think  it  must  be  held  in  this  state  that  on  the  death  of  the  ancestor 
the  descent,  whether  as  to  real  or  personal  property,  was  cast  upon 
the  heirs,  without  reference  to  the  actual  seisin  of  the  ancestor.  Hill- 
house  V.  Chester,  3  Day  (Conn.)  166,  3  Am.  Dec.  265.  Indeed,  it 
was  held  by  Justice  Story  in  Cook  v.  Hammond,  4  Mason,  467,  Fed. 
Cas.  No.  3,159,  that  the  word  "seisin,"  under  acts  of  descent  in  this 
country,  was  equivalent  to  "ownership."     *     *     * 

The  right  or  interest  reserved  by  the  deed  in  question  to  the  grantor 
and  his  heirs  must  have  been  in  some  one  between  the  death  of  the 
original  grantor,  Adam  Stewart,  and  the  determination  of  the  estate 
when  the  property  ceased  to  be  used  and  occupied  as  a  church.  It  is 
an  interest  that  is  inherited,  and  therefore  must  have  been  cast  by 
descent  upon  Adam  Stewart's  heirs  at  the  time  of  his  death,  and  did 
not  originate  at  the  time  the  property  ceased  to  be  used  for  church 
purposes.  This  conclusion  is  supported  by  the  great  weight  of  au- 
thority, and  is  in  harmony  with  the  customs  and  practice,  not  only  in 
this  state  but  of  the  country  at  large.  Under  this  rule  the  three  daugh- 
ters of  Adam  Stewart  inherited  this  interest  in  equal  parts.  Through 
the  deaths  of  various  heirs,  one-half  interest  descended  to  William  W. 
Snyder,  the  husband  of  one  of  these  daughters,  and  was  owned  by  him 


Ch,  1)  THE    NATURE    OF   DESCENT.  391 

at  the  time  said  property  ceased  to  be  used  as  a  church.  He  there- 
after, May  5,  1906,  after  the  commencement  of  this  suit,  quitclaimed 
his  interest  to  Samuel  Graham,  one  of  the  appellants  herein.     *     *     * 

The  trial  court  should  have  entered  judgment  in  favor  of  appellee, 
not  for  the  entire  premises,  but  for  one-half  of  the  premises.  For  the 
reasons  indicated,  the  judgment  of  the  circuit  court  will  be  reversed 
and  the  cause  remanded. 

Reversed  and  remanded.^* 


SECTION  4.-'DESCENT  AND  DISTRIBUTIONS 


THE  STATUTE"  OF  DISTRIBUTIONS. 

By  St.  22  &  23  Car.  II,  c.  10,  explained  by  St.  29  Car.  II,  c.  30,  it 
is  enacted  that  the  surplusage  of  intestates'  estates  (except  of  femes 
covert,  which  are  left  as  at  common  law)  shall,  after  the  expiration 
of  one  full  year  from  the  death  of  the  intestate,  be  distributed  in  the 
following  manner:  One-third  shall  go  to  the  widow  of  the  intestate, 
and  the  residue  in  equal  proportions  to  his  children,  or  if  dead,  to 
their  representatives ;  that  is,  their  lineal  descendants.  If  there  are 
no  children  or  legal  representatives  subsisting,  then  a  moiety  shall 
go  to  the  widow,  and  a  moiety  to  the  next  of  kindred  in  equal  degree 
.and  their  representatives.  If  no  widow,  the  whole  shall  go  to  the 
children.  If  neither  widow  nor  children,  the  whole  shall  be  distrib- 
uted  among  the  next  of  kin  in  equal  degree  and  their  representatives : 
but  no  representatives  are  admitted,  among  collaterals,  further  than 
the  children  of  the  intestate's  brothers  and  sisters.  The  next  of  kin- 
dred, here  referred  to,  are  to  be  investigated  by  the  same  rules  of 
consanguinity  as  those  who  are  entitled  to  letters  of  administration, 
of  whom  we  have  sufficiently  spoken.  And  therefore  by  this  statute 
the  mother,  as  well  as  the  father,  succeeded  to  all  the  personal  effects 
of  their  children,  who  died  intestate,  and  without  wife  or  issue,  in 
exclusion  of  the  other  sons  and  daughters,  the  brothers  and  sisters 
of  the  deceased.    And  so  the  law  still  remains  with  respect  to  the  fa- 

10  Even  at  common  law  actual  seisin  was  construed  as  liberally  as  possible. 
"Where  there  is  no  one  in  possession  at  the  death  of  the  ancestor,  there  must 
be  an  actual  entry  by  the  heir  to  give  him  the  seisin  in  fact.  But,  when 
there  is  a  tenant,  his  possession  becomes  that  of  the  heir  immediately  on  the 
death  of  the  ancestor.  The  subsequent  misconduct  of  the  tenant  in  paying 
rent  to  another  person,  or  the  mistake  of  the  heir  as  to  his  rights,  cannot  by 
relation  alter  the  nature  of  the  seisin  which  he  before  had."  Bayley,  J.,  in 
Bushby  v.  Dixon,  3  B.  &  C.  298,  305  (1824).  In  the  same  case,  Abbott,  'C.  J., 
declared  that  "the  possession  of  a  tenant  for  years,  being  a  rightful  posses- 
sion, is  considered  in  law  as  the  possession  of  the  heir,  and,  therefore,  gives 
him  a  seisin  in  fact."    Id. 


392  DESCENT.  (Part  2 

ther;    but  by  St.  1  Jac.  II,  c.  27,  if  the  father  be  dead,  and  any  of 
the  children  die  intestate,  without  wife  or  issue,  in  the  hfetime  of 
the  mother,  she  and  each  of  the  remaining  children,  or  their  repre- 
sentatives, shall  divide  his  effects  in  equal  portions. 
2  Bl.  Com.  *515,  *516.^^ 


HENRY  V.  HENRY. 

(Supreme  Court  of  North  Carolina,  1848.     31  N.  C.  278.) 

Appeal  from  the  superior  court  of  law  of  New  Hanover  county, 
at  the  fall  term  1848;  his  honor,  Judge  Manly,' presiding. 

The  petitioners  allege  that  they  are  the  "heirs  at  law"  and  "dis- 
tributees" of  Hezekiah  Bonham,  who  died  intestate;  that  the  defend- 
ants are  the  administrators  of  the  said  Bonham,  and,  as  such,  took 
into  their  possession  negroes,  bonds,  money,  and  other  personal  prop- 
erty to  a  large  amount.  The  prayer  is  for  an  account  and  distribu- 
tion. 

The  defendants  admit  that  they  are  the  administrators  de  bonis  non 
of  Bonham,  but  they  allege  that  administration  upon  his  estate  had 
been  before  granted  to  one  Neil  Henry,  who  had  died  intestate,  and 
that  one  Nathan  Bonham  is  the  administrator  of  the  said  Neil  Henry. 
They  therefore  insist  that  they  are  liable  to  account  with  the  said  Na- 
than Bonham,  and  not  with  the  petitioners,  Ann  Henry  or  her  chil- 
dren. They  further  allege  that  Neil  Henry  committed  a  devastavit 
to  the  amount  of  about  $800,  and  they  are  the  sureties  on  his  adminis- 
tration bond.  "They  maintain  that  the  estate  of  the  said  Neil  Henry 
is  responsible  for  this  deficiency,  and  the  defendants  having  the  share 
of  the  estate  of  the  said  Hezekiah  Bonham  in  their  hands,  to  which 
the  representatives  are  entitled,  they  have  a  right  to  retain  the  same, 
or  so  much  thereof  as  shall  be  sufficient  to  pay,  satisfy,  and  discharge 
the  said  deficiency." 

A  reference  was  made  to  the  clerk  to  take  an  account.  The  clerk 
made  a  report,  to  which  the  defendants  filed  an  exception.  The  case 
came  on  to  be  heard  upon  the  petition,  answer,  report,  and  exception. 
The  exception  was  overruled,  and  the  report  was  confirmed,  and  a 
decree  for  the  petitioners,  from  which  the  defendants  appealed. 

Pearson,  J.  The  petitioners  claim  the  personal  estate  of  the  intes- 
tate as  his  "heirs  at  law"  and  "distributees."  The  word  "heirs"  is 
used  to  denote  the  persons  who  are  entitled,  by  descent,  to  the  real 
estate  of  a  deceased  ancestor.  It  is  appropriated  to  that  purpose,  and 
when  used  in  pleading,  in  reference  to  personal  estate,  it  has  no  mean- 
ing, and  must  be  rejected  as  surplusage. 

11  See  St.  22  &  23  Oar.  II,  c.  10,  in  the  Appendix.  Local  statutes  should 
be  consulted.  On  the  statutes  of  descent  and  distribution  in  the  United 
States,  see  3  Prob.  Itep.  Ann,  5uG,  note. 


Ch.  1)  THE    NATURE    OF   DESCENT.  393 

The  other  word,  "distributees,"  is  new  in  pleading ;  but  my  Brother 
Nash  and  myself  deem  it  admissible  to  denote  the  persons  who  are 
entitled,  under  the  statute  of  distributions,  to  the  personal  estate  of 
one  who  is  dead  intestate. 

No  one  word  has  heretofore  been  used  for  that  purpose,  and  it  has 
been  necessary,  in  order  to  convey  the  idea,  to  make  use  of  a  para- 
phrase or  set  of  words.  "Widow"  or  "next  of  kin"  are  sometimes  used 
in  pleading,  but  these  words  are  insufficient  to  convey  the  idea;  for 
"next  of  kin"  means  nearest  of  kin,  and  does  not  include  those  who 
are  entitled  by  representation.  The  statute  of  distributions  uses  the 
words  "next  of  kin  of  the  intestate,  who  are  in  equal  degree,  and 
those  who  legally  represent  them,"  To  avoid  the  use  of  so  many 
words,  it  is  certainly  desirable  to  have  one  word  to  convey  the  idea 
in  reference  to  personal  estate ;  and  as  there  is  a  necessity  for  making 
a  word,  we  can  see  no  objection  to  the  word  "distributees."  It  com- 
mends itself,  because  it  is  new,  and  has  not  been  appropriated  to  any 
other  use,  and  is  as  fit  and  seemly  a  word  as  feoffee,  mortgagee,  bar- 
gainee, bailee,  indorsee,  etc.  We  know  the  word  "distributee"  is  now 
in  common  use  among  the  legal  profession,  and  the  fact  that  it  has 
been  adopted  by  the  profession  and  the  Legislature,  notwithstanding 
the  severe  rebuke  given  to  it  by  Chief  Justice  Henderson  in  Croom  v. 
Herring,  11  N.  C.  393,  is  a  convincing  proof  that  the  necessity  for  a 
new  word  really  existed. 

But,  yielding  to  the  petitioners  the  benefit  of  this  word,  they  have 
not  entitled  themselves  to  a  decree,  because  there  is  no  proof  that  they 
are  distributees.  The  answer  does  not  admit  it,  and  no  depositions 
have  been  taken ;  and  we  should  reverse  the  decree  made  below,  and 
dismiss  the  bill,  but  for  the  fact  that  the  answer  is  equally  defective, 
and  we  feel  disposed  to  extend  great  indulgence  to  proceedings  com- 
menced in  the  county  court.  The  answer  does  not  state  the  ground 
upon  which  the  defendants  maintain  their  right  to  retain  the  share 
of  the  estate  to  which  the  representatives  of  Neil  Henry  are  entitled. 
Nor  does  it  state  upon  what  ground  Neil  Henry  became  entitled  to  a 
share  of  the  estate  of  Hezekiah  Bonham.  We  conjecture  from  what 
is  stated,  for  the  first  time,  in  the  decree,  that  Neil  Henry  was  the 
husband  of  Ann  Henry,  the  petitioner,  and  that  the  defendants  wished 
to  raise  the  question  whether,  as  husband,  he  was  not  entitled  to  her 
distributive  share;  but  there  are  no  allegations  to  raise  the  question 
and  no  proofs  whatever. 

The  decree  made  below  must  be  reversed,  with  costs  in  this  court, 
and  we  will  then  direct  the  cause  to  be  remanded  upon  the  motion  of 
the  petitioners,  so  as  to  let  in  amendments  and  give  an  opportunity  to 
make  proofs  of  the  allegations.  If  no  such  motion  is  made  at  this  or 
the  next  term,  the  petition  will  be  dismissed. 

RuFFiN,  C.  J.^^  Having  the  misfortune  to  differ  in  opinion  with 
my  Brothers  on  one  point  in  the  case,  I  must  take  the  liberty  of  stat- 


394  DESCENT.  (Part  2 

ing  my  reason.  *  *  *  It  is  indispensable  that  a  plaintiff  should 
in  his  pleading  give  himself  a  title  to  the  thing  he  demands,  for  the 
court  cannot  declare  one  which  is  not  set  up.  These  plaintiffs  say 
they  are  the  "heirs  at  law  and  distributees"  of  the  intestate,  Bonham, 
and  they  pray  that  the  defendants  may  be  decreed  to  pay  to  "the  said 
heirs"  their  portions  of  the  estate,  and  that  the  negroes  may  be  divid- 
ed "among  the  heirs  as  aforesaid."  The  plaintiffs,  therefore,  claim  ' 
as  "the  heirs  and  distributees"  of  the  intestate.  The  statute  distributes 
the  personal  estate  of  an  intestate  among  his  "widow  and  children  or 
next  of  kin  in  equal  degree  or  their  legal  representatives,"  and  not  to 
the  heirs.  The  term  "heirs"  has  no  proper  signification  in  respect  to 
the  right  of  succeeding  to  personalty.  It  is  often  used  in  wills  and  in 
inaccurate  conversation  to  signify,  in  an  improper  sense,  children 
sometimes,  and  at  other  times  descendants,  or  issue,  or  nearest  of  kin, 
or  the  persons  entitled  under  the  statute  of  distributions ;  and  these 
different  meanings  are  arrived  at  from  the  context.  But  it  surely 
would  not  be  tolerated  in  pleading  as  expressing  either  of  those 
senses,  or  constituting  a  title  under  the  statute  to  the  personal  estate 
of  an  intestate,  after  debts  paid.  Upon  that  point,  however,  my 
Brethren  and  I  concur. 

The  other  term,  by  which  the  plaintiffs  describe  themselves  and 
make  title,  is  yet  more  objectionable,  as  I  conceive.  "Heirs"  is  an 
English  word,  and  a  term  of  the  law,  and  is,  therefore,  understood, 
though  improperly  applied  to  this  subject.  But  "distributees"  is  not 
a  word  at  all  known  in  the  law  or  the  language.  Until  my  Brothers 
told  me  that  they  understood  what  it  meant,  I  must  humbly  beg  par- 
don for  saying  that  I  looked  upon  it  as  a  newly  invented  barbarism, 
and  without  any  settled  sense.  Indeed,  I  do  not  now  understand 
from  what  source  the  meaning  of  the  term  is  derived.  I  believe  it  is 
a  phrase  which  is  sometimes  used  in  common  parlance  by  persons  who 
are  not  of  the  profession  and  do  not  aim  at  accuracy  in  speaking  on 
legal  subjects.  Some  members  of  the  bar  may  have  thence  fallen 
into  the  use  of  it  sometimes  in  discussion,  when  precision  of  expres- 
sion is  of  the  less  importance  as  there  is  opportunity  for  explanation. 
But  those  who  indulge  themselves  in  that  mode  of  speech,  are  so  sen- 
sible of  its  impropriety  that,  as  Judge  Henderson  remarked  in  Croom 
V.  Herring,  11  N.  C.  393,  they  seldom  use  "distributee"  without  an 
apology,  knowing  that  it  is  not  to  be  found  in  any  English  dictionary, 
or  English  book — much  less  in  a  law  book.  I  believe  I  may  add 
that  up  to  this  day  it  has  not  obtained  admission  into  any  American 
dictionary,  though  at  least  one  of  them  has  been  supposed  to  have 
taken  in  every  word  that  could  possibly  be  tolerated. 

But,  when  used,  it  has  not  seemed  to  me,  at  least,  to  be  in  any  defi- 
nite sense.    Like  "heirs"  in  reference  to  personalty,  it  has  appeared  to 

la  Part  of  tbe  dissenting  opinion  of  RuflBn,  C.  J.,  is  omitted. 


Ch.  1)  THE   NATURE   OP   DESCENT.  S95 

be  intended  sometimes  to   designate  children   by  it;    at  others   the 
widow  and  children,  or  all  the  kindred,  or  a  single  one,  that  may.  be 
entitled  to  a  distributive   share  or  the  whole  property,   by  original 
right  or  by  representation,  or  even  a  person  entitled  to.  a  share^  by  as- 
signment.    I  know  I  have  heard  a  single  child  called  "sole  distribu- 
tee," and  also  that  one,  who  had  purchased  a  share,  "had  become  a 
distributee."     So  I  had  really  supposed  that  there  was  no  meaning 
attached  to  the  word  by  itself,  in  the  mind  of  any  one,  but  that  it  va- 
ried in  vulgar  use  with  the  context,  and  that,  therefore,  it  was  wholly 
inappropriate  to  describe  a  title  to  property  in  pleading  and  entries. 
In  wills  or  contracts  the  courts  would  be  obliged  to  receive  it  in  some 
sense,  and  would  endeavor  to  discover  that  which  would  subserve  the 
intention  in  the  particular  case.     If,  perchance,  it  were  to  find  its  way 
into  a  statute,  the  judicial  duty  would  be  the  same.     But  that  would 
not  render  it  proper  to  transfer  it  into  judicial  proceedings.    For  legis- 
lators, like  testators,  take  the  right  to  puzzle  judges  as  much  as  they 
please,  and  often  do  not  trouble  themselves  much  in  the  selection  of 
terms.'    The  same  latitude,  however,  is  not  to  be  claimed  by  pleaders 
and   clerks.      Pleadings   and   the   entries  of   judgments   and   decrees 
ought  to  be  in  the  language  of  the  law.     For  them  there  are  prece- 
dents, settled  long  ago  by  the  wise  and  the  learned,  and  used  from 
generation  to  generation  by  those  who  were  and  are  as  discreet  and 
well  informed  as  any  among  us  can  claim  to  be.     *     *     *,     . 

Per  Curiam.  Petition  to  be  dismissed,  unless  the  plaintiffs  apply 
at  the  next  term  to  have  the  cause  remanded.^* 

14  The  term  "distributee"  has  the  advantage  of  having  only  one  meaning, 
whereas  the  phrase  "next  of  liin"  is  used  in  two  senses. 

"It  seems  to  me  that  by  next  of  kin  this  statute  meant  distributees  of  the 
deceased  intestate.  *  *  *  This  phrase  [next  of  kin]  frequently  occurs  in 
wills-  and  while  it  is  true  that  the  courts  interpret  it  very  generally  as 
meaning  nearest  blood  relation,  yet  when  from  the  context  or  other  portions 
of  the  will  it  is  apparent  that  the  testator  intended  to  include  in  the  phrase 
all  his  distributees,  the  courts  will  so  construe  the  phrase  and  include  in  it 
a  widow  or  surviving  husband,  though  to  justify  such  a  construction  of  a 
will  it  must  be  very  apparent  that  the  testator  meant  that  it  should  have 
this  comprehensive  meaning.  *  *  *  The  courts  have,  however,  it  seems  to 
me  been  less  strict  in  conflntag  the  phrase  next  of  kin  to  blood  relations, 
when  statutes  were  to  be  construed,  and  have  frequently  interpreted  this 
phrase  to  include  a  husband  or  wife."  Green,  J.,  in  Seabright  v.  Seabnght, 
28  W  Va  412  4G5,  4G6  QSSG).  See  French  v.  French,  84  Iowa,  65.5,  51  N. 
W  145  15  L.  R.  A.  SOO  (1892);  Steel  v.  Kurtz,  28  Ohio  St.  191  (1876);  Bet- 
singer  'v.  Chapman,  88  N.  Y.  487  (1882).  For  a  decision  adhering  in  the  con- 
struction of  a  will  to  the  primary  meaning  of  "next  of  kin  "  jliich  'includes 
neither  a  widow  nor  a  husband,"  see  Matter  of  Devoe,  171  N.  Y.  281,  63  N. 
E.  1102,  57  L.  R.  A.  536  (1902).     O'Brien,  J.,  dissented. 


396  DESCENT.  (Part  2 


SECTION  5.— PARTIAL  INTESTACY 


In  re  WILLBOR. 

le  Court  of  Rhode  Island,  1897.    20  R.  I.  126,  37  Atl.  634,  51  L.  R.  A. 
863,  78  Am.  St.  Rep.  842.) 

Ma^teson,  C,  J.  This  is  a  case  stated  for  an  opinion  of  the  court, 
as  follows :  Three  sisters,  Charlotte  Willbor,  Martha  T.  Willbor,  and 
Eliza  Ann  Willbor,  late  of  Newport,  deceased,  all  perished  in  the  same 
calamity — the  burning  of  their  house  in  Newport.  They  left  instru- 
ments in  writing,  purporting  to  be  their  last  wills  and  testaments, 
which  have  been  duly  admitted  to  probate.  By  these  wills  each  testa- 
trix gave  and  devised  all  her  real  and  personal  estate  to  her  two  sis- 
ters, or  to  either  of  the  survivors,  and  to  their  heirs  and  assigns  for- 
ever, and  then,  having  first  directed  that,  after  the  decease  of  the  last 
sister,  the  necessary  debts  should  be  paid,  proceeds  to  give  to  her  two 
nieces,  Emily  N.  Willbor  and  Maria  H.  Willbor,  $500  each,  and  to 
Thomas  W.  Smith  $200.  The  legatee  Emily  N.  Willbor  died  before 
the  testatrices.  The  only  heirs  at  law  of  the  testatrices  are  Abbie  R. 
Richards,  Ann  Elizabeth  Clarke,  Mary  H.  Adams,  Sarah  T.  Bliven, 
and  Maria  H.  Willbor. 

Upon  these  facts,  the  questions  propounded  are :  '  ( 1)  What  is  the 
amount  of  the  legacies  to  which  Maria  H.  Willbor  and  Thomas  W. 
Smith  are  respectively  entitled  under  the  wills?  (2)  What  portion 
of  the  estate  of  the  testatrices  passed  to  their  heirs  at  law?  As  all 
three  of  the  testatrices  lost  their  lives  in  the  same  disaster,  and  no 
fact  or  circumstance  appears  from  which  it  can  be  inferred  that  either 
survived  the  others,  the  question  of  survivorship  must  be  regarded  as 
unascertainable,  and  hence  the  rights  of  succession  to  their  estates 
are  to  be  determined  as  if  death  occurred  to  all  at  the  same  moment. 
Underwood  v.  Wing,  19  Beav.  459,  4  De  Gex,  M.  &  G.  633 ;  Wing 
v.  Angrave,  8  H.  L.  Cas.  183 ;  Wollaston  v.  Berkeley,  2  Ch.  Div.  213 ; 
In  re  Wainwright,  1  Swab.  &  T.  257 ;  Scrutton  v.  Pattillo,  L.  R.  19 
Eq.  369;  Coye  v.  Leach,  8  Mete.  (Mass.)  371,  41  Am.  Dec.  518; 
Johnson  v.  Merithew,  80  Me.  Ill,  13  Atl.  132,  6  Am.  St.  Rep.  162; 
Newell  V.  Nichols,  12  Hun,  604;  Id.,  75  N.  Y.  78,  31  Am.  Rep.  424; 
In  re  Hall,  9  Cent.  Law  J.  381;  Russell  v.  Hallett,  23  Kan.  276;  Es- 
tate of  Ehle,  73  Wis.  445,  41  N.  W.  627 ;  24  Am.  &  Eng.  Enc.  Law, 
1027-1032. 

If  all  three  of  the  testatrices  are  to  be  regarded  as  having  died  at 
the  same  moment,  it  follows  that  the  bequest  and  devise  in  each  of 


Qh,  1)  THE   NATURE   OF    DESCENT.  397 

their  wills  to  the  two  sisters,  or  either  of  the  survivors,  did  not  take 
effect,  there  being  no  interval  of  time,  as  between  the  deaths  of  the 
three,  during  which  titles  to  property  could  vest ;  and  the  wills  there- 
fore stand  as  if  they  contained  only  the  bequests  to  the  legatees  sub- 
sequently named,  to  wit,  Maria  H.  Willbor  and  Thomas  W.  Smith— 
the  other  legatee,  Emily  N.  Willbor,  having  deceased  without  issue 
before  the  deaths  of  the  testatrices. 

We  are  therefore  of  the  opinion:  (1)  That,  after  the  payment  of 
the  debts  of  each  testatrix,  Maria  H.  Willbor  and  Thomas  W.  Smith 
are  entitled  to  the  legacies  of  $500  and  $300  respectively  bequeathed 
to  them  in  each  will,  to  be  paid  out  of  the  personal  estate  of  each  tes- 
tatrix, if  the  personal  estate  is  sufficient,  and,  if  insufficient  that  such 
legacies  shall  abate  proportionately;  (2)  that  the  residue  of  the  per- 
sonal estate,  if  any,  and  the  real  estate,  of  each  testatrix,  if  any,  passes, 
as  intestate  estate,  to  her  next  of  Ion  and  heirs  at  law.^' 


SECTION  6.— EQUITa/lE  AnNlEGAL  DESCENDIBLE  IN- 
TERESTS 


CLAPP  v.  TOWER. 

(Supreme  C3ourt  of  North  Dakota,  1903.    11  N.  D.  556,  98  N.  W.  862.) 

Young,  J.  This  is  an  action  to  quiet  title  to  a  section  of  land  situ- 
ated in  Cass  county,  which  was  conveyed  to  the  plaintiff  by  the  exec- 
utors of  the  last  will  and  testament  of  Charlemange  Tower,  deceased. 
The  complaint  alleges  that  the  plaintiff  is  the  owner  of  said  real  es- 
tate, and  that  the  defendants  claim  an  interest  therein  adverse  to  the 
plaintiff,  and  prays  that  they  be  required  to  set  forth  their  claims,  to 
the  end  that  their  validity  may  be  determined,  and  that  title  be  quieted 
in  the  plaintiff. 

Defendants,  in  their  answer,  allege  that  they  are  the  next  of  kin  and 
all  of  the  heirs  at  law  of  said  Charlemange  Tower,  deceased,  and  all 
the  surviving  legatees  under  his  will ;  that  said  Charlemange  Tower 
died  in,  and  a  resident  of,  the  city  of  Philadelphia,  Pa.,  and  that  his 
will  was  probated  there;    that  the  land  in  question  was  sold  by  said 

»•  On  the  presumption  of  survivorship  among  those  who  perish  In  a  com- 
mon disaster,  see  51  L.  R.  A.  803,  note ;  104  Am.  St.  Rep.  211,  note.  On  par- 
tial intestacy  as  to  personalty,  see  Dresel  v.  King,  post,  p.  720. 


398  DESCENT.  (Part  2 

deceased  to  one  Hadley  upon  a  contract  which  provided  for  the  exe- 
cution and  delivery  of  a  deed  to  him  upon  the  making  of  certain 
deferred  payments  specified  in  said  ^contract ;  that  subsequent  to 
the  death  of  Charlemange  Tower  the  executors  of  his  will  foreclosed 
said  contract  by  reason  of  the  default  of  said  Hadley  in  making  pay- 
ments according  to  its  terms,  and  that  said  land  became  a  part  of  the 
estate  of  said  deceased;  that  thereafter  the  executors,  acting  upon 
the  theory  that  said  land  was  subject  to  the  principle  and  rule  of  equi- 
table conversion,  and  was  for  the  purposes  of  administration  to  be 
treated  as  personal  property,  sold  and  conveyed  the  same  to  the  plain- 
tiff, who  has  ever  since  been  in  possession  of  the  same,  claiming  the 
ownership  and  possession  thereof  by  virtue  of  said  deed  from  said 
executors;  that  the  defendants  are  the  owners  of  said  real  estate  by 
virtue  of  their  heirship,  and  ask  that  the  title  be  quieted  in  them. 

The  plaintiff  demurred  to  the  answer  upon  the  ground  that  it  does 
not  state  facts  sufficient  to  constitute  a  defense  or  counterclaim.  The 
trial  court  sustained  the  demurrer,  and  the  defendants  appeal  from 
the  order  sustaining  the  same. 

The  will  of  Charlemange  Tower  was  before  this  court  in  the  case 
of  Penfield  v.  Tower,  1  N.  D.  216,  46  N.  W.  413.  This  court  held 
that,  so  far  as  its  provisions  related  to  real  estate  situated  in  this  state, 
it  was  inoperative  and  void,  and  that  the  real  estate  of  said  deceased  in 
this  state  must  be  distributed  according  to  the  law  of  succession  of 
this  state,  and  that  the  personal  property  should  be  distributed  accord- 
ing to  the  terms  of  the  will.  The  only  question  involved  upon  the 
issue  raised  by  the  demurrer  is  whether  the  land  in  question  should, 
under  the  facts  pleaded  in  the  answer,  be  treated  as  real  estate  or  as 
personal  property.  If,  for  the  purposes  of  administration,  it  retains 
the  character  of  real  estate,  the  will  not  being  operative,  it  descended 
directly  to  the  heirs,  the  defendants  in  this  action.  This  is  conceded. 
If,  on  the  other  hand,  it  is  to  be  considered  as  personal  property,  it 
then  went  to  the  executors  for  the  purposes  of  distribution,  and  they 
had  full  right  and  authority  to  sell  and  convey  the  same  in  the  manner 
and  form  pursued,  and  to  account  for  the  proceeds  to  the  orphans' 
court  of  the  state  of  Pennsylvania,  from  which  they  received  their 
appointment. 

It  is  very  properly  conceded  by  both  parties  that  under  the  rule  and 
doctrine  of  equitable  conversion  land  may  be  treated  as  money  and 
money  as  land,  whenever  in  equity,  it  is  proper  to  invoke  and  apply 
the  principle  of  that  doctrine.  ''E2ujiabk.£cmYerdOiiJs..jd€6«€d.,a^_^ 
constriiGtive-«44eiaiipjiJn_the_  nature..of  property  by  which,  in  equity, 
real  estate  is-xegarded  as  personalty  or  personal  estate  as""realty/'  -7. 
Ame'r.  &  Eng.  Enc.  of  Law  (2d  Ed.)  p.  464.  And  the  doctrine  has 
its  origin  in  the  maxim  of  equity  that  that  is  regarded  as  done  which 
should  be  done.     Penfield  v.  Tower,  supra. 

There  is  no  room  for  doubt  that  upon  the  facts  pleaded  in  the  de- 


Ch.  1)  THE   NATURE   OF  DESCENT.  399 

fendants'  answer  the  rule  of  equitable  conversion  is  applicable,  and 
that  the  execution  and  delivery  of  the  contract  of  sale  of  the  real  es- 
tate in  question  by  Charlemange  Tower  during  his  lifetime — and  the 
same  was  valid  and  enforceable  at  the  time  of  his  death — worked  a 
conversion  of  the  land  into  personalty.  His  interest,  after  the  execu- 
tion of  the  contract  and  at  the  time  of  his  death,  was  the  money  con- 
tracted to  be  paid  by  the  purchaser,  and  the  purchaser's  interest  was 
the  land  contracted  to  be  conveyed.  In  such  cases,  says  Pomeroy,  in 
his  work  on  Equity  Jurisprudence  (section  105),  "the  vendor  still 
holds  the  legal  title,  but  only  as  a  trustee,  and  he  in  turn  acquires  an 
equitable  ownership  of  the  purchase  money.  His  property,  as  viewed 
by  equity,  is  no  longer  real  estate,  in  the  land,  but  personal  estate,  in 
the  price;  and,  if  he  dies  before  payment,  it  goes  to  his  administra- 
tors, and  not  to  his  heirs.  In  short,  equity  regards  the  contracting 
parties  as  having  changed  positions,  and  the  original  estate  of  each 
as  having  been  'converted' — that  of  the  vendee  from  personal  into 
real  property,  and  that  of  the  vendor  from  real  into  personal  prop- 
erty." 

The  doctrine  is  laid' down  in  Williams  et  al.  v.  Haddock,  145  N.  Y. 
144,  39  N.  E.  825,  as  follows :  "Courts  of  equity  regard  that  as  done 
which  ought  to  be  done.  They  look  at  the  substance  of  things,  and 
not  at  the  mere  form  of  agreements,  to  which  thev  give  the  precise 
effect  which  the  parties  intended.  It  is  presumed  that  the  vendor,  in 
agreeing  to  sell  his  land,  intends  that  his  property  shall  assume  the 
character  of  the  property  in  which  it  is  to  be  converted,  and  it  cannot 
be  denied  that  it  is  competent  for  the  owner  of  land  thus  to  make  such 
,  land  into  money  at  his  sole  will  and  pleasure.  If  the  vendor  die  prior 
to  the  completion  of  the  bargain,  provided  there  has  been  no  default, 
the  heir  of  the  vendor  may  be  compelled  to  convey,  and  the  proceeds 
of  the  land  will  go  to  the  executors  as  personal  property." 

The  rule  is  uniform,  we  think,  that,  where  a  valid  and  binding  con- 
tract of  sale  of  land  has  been  entered  into,  such  as  a  court  of  equity 
will  specifically  enforce  against  an  unwilling  purchaser  the  contract 
operates  as  a  conversion.  Keep  et  al.  v.  Miller,  42  N.  J.  Eq.  100,  (i 
Atl.  495.  See,  also,  7  Am.  &  Eng.  Enc.  of  Law  (2d  Ed.)  471,  cases 
cited  in  note  1. 

The  only  authority  cited  by  appellants  in  opposition  to  this  general 
rule  which  can  be  said  to  be  at  all  in  point  is  Kerr  v.  Day,  14  Pa.  112, 
53  Am.  Dec.  526.  That  case,  however,  cannot  be  considered  as  an 
authority  in  their  favor,  for  in  that  case  the  contract  of  sale  was  not 
enforceable,  and  for  that  reason  it  was  held  that  a  conversion  was 
prevented.  Had  the  contract  been  valid  and  enforceable,  as  the  con- 
tract in  the  case  at  bar,  it  is  evident  that  the  decision  would  have  been 
otherwise. 

The  real  estate  in  question,  having  assumed  the  character  of  per- 
sonalty went  to  the  executors,  and  it  continued  as  personalty  for  the 
purposes  of  administration,  so  that  the  executors  could,  after  the  can- 


400  DESCENT.  CPart  2 

cellation  of  the  contract,  sell  and  convey  the  same  to  the  plaintiff  in 
the  manner  and  form  pursued. 

The  demurrer  to  the  answer  was,  therefore,  properly  sustained,  and 
the  order  will  be  affirmed.^® 

16  But  see  the  statement  of  Lord  Hardwicke  In  Attorney  General  v.  Day, 
1  Ves.  Sr.  218,  220  (1749),  that  "there  is  no  case  where  the  representative  of 
the  personal  estate  is  entitled  to  claim  the  money,  arising  by  sale  of  the 
lands,  as  personal  estate,  except  where  one  or  other  of  the  contracting  parties 
is  entitled  to  carry  it  into  execution  in  a  court  of  equity;  for  where  the 
court  holds  it  ought  not  to  be  executed,  there  is  no  conversion  of  real  into 
personal  in  consideration  of  the  com-t,  upon  which  that  right  of  the  executor 
depends ;  for  if  not  effectually  converted  into  money,  it  must  be  considered 
according  to  its  original  nature  as  real,  and  the  heir  at  law  must  have  the 
benefit." 

Where  the  conversion  is  to  take  place  because  of  provisions  in  a  will,  and 
"the  object  which  was  to  be  gained  by  the  conversion  of  the  property  has 
wholly  or  partially  failed,"  there  are  several  decisions.  "Let  us  begin  with 
a  simple  case.  A.  by  his  will  leaves  land  to  trustees,  upon  trust  to  sell  and 
to  pay  the  proceeds  to  B.  B.  dies  in  the  lifetime  of  A.,  and  (not  being  a  de- 
scendant of  the  testator— see  the  Wills  Act,  §  33)  the  disposition  of  the  pro- 
ceeds of  sale  fails  utterly.  The  sale,  then,  is  not  required  for  any  purpose 
whatever,  and  as  between  the  testator's  heir  at  law  and  his  next  of  kin  we 
shall,  I  think,  have  little  difficulty  in  deciding  in  favor  of  the  heir.  But  A. 
by  his  will  leaves  land  to  trustees  upon  trust  to  sell  and  divide  the  proceeds 
between  B.  and  C.  B.  survives  the  testator ;  C.  does  not.  Now  a  sale  is  re- 
quired by  the  will.  It  is  required  in  order  that  B.  may  have  what  the  tes- 
tator has  intended  to  give  him,  namely,  money,  and  not  land.  But  this  will 
exhaust  but  half  of  the  fund  (B.  and  0.  were  not  made  joint  tenants,  but 
tenants  in  common).  What  is  to  become  of  the  residue?  The  testator's  heir 
at  law  and  his  next  of  kin  seem  both  to  have  plausible  claims.  The  laud 
must  be  turned  into  money  in  order  that  B.  may  get  his  share.  Will  not  the 
other  moiety  also  be  personalty,  and  is  it  not  the  rule  that  a  dead  person's 
undisposed  of  personalty  goes  to  his  next  of  kin?  In  the  famous  case  of 
Ackroyd  v.  Smithson,  1  Bro.  C.  C.  503.  this  reasoning  was  overruled.  The 
land,  it  Is  true,  must  be  sold;  but  that  is  merely  in  order  that  B.  may  get 
that  moiety  of  the  price  which  A.  has  given  to  him.  As  between  his  real 
and  his  personal  representatives  the  testator  has  made  no  choice.  The  prop- 
erty comes  to  them,  not  because  the  testator  has  said  that  it  shall  come 
to  them,  but  because  he  has  not  effectually  given  it  to  any  one  else;  they 
are  not  entitled  under  the  will,  they  claim  in  consequence  of  a  partial  in- 
testacy— and  our  law  is  that  if  a  tenant  in  fee  simple  dies  intestate  his  land 
descends  to  his  heir.  So  here  the  testator's  heir  takes  the  moiety  of  the 
property  that  was  destined  for  C.  In  this  case  the  gift  to  C.  lapses  in  con- 
sequence of  C's  death  in  the  testator's  lifetime.  The  result  would  be  the 
same  if  the  gift  to  him  had  failed  for  any  other  reason,  for  instance,  as  being 
contrary  to  law.  *  *  *  A  further  point  is  well  established,  namely,  that  in 
all  these  cases  where  the  heir  at  law  becomes  entitled  to  an  undisposed  of 
share  of  money  to  arise  from  the  sale  of  land  he  takes  it  not  as  realty  but 
as  personalty.  A.  devises  land  upon  trust  for  sale,  and  the  proceeds  are  to 
be  divided  between  B.  and  C.  C.  dies  in  A.'s  lifetime.  A.'s  heir  at  law  be- 
comes entitled  to  half  the  property ;  but  before  the  sale  is  made  he  dies — 
perhaps  he  dies  Intestate  and  the  question  is  between  his  heir  and  his  next 
of  kin — or  perhaps  he  has  left  a  will  devising  his  realty  to  X.,  and  bequeath- 
ing his  personalty  to  Y. — any  way,  his  real  and  his  personal  representatives 
both  claim  the  share,  and  the  question  is  decided  in  favor  of  his  personal 
representatives.  Smith  v.  Claxton,  4  Madd.  484.  The  heir  has  become  en- 
titled—to  what?  To  land  that  is  subject  to  a  trust  for  conversion  into  money 
—a  trust  which  B.  can  enforce — he  has  become  entitled  to  personalty.  In 
re  Richerson,  [1892]  1  Ch.  379.  *  *  *  We  turn  to  the  other  side  of  the 
picture  and  we  find  the  same  principles  prevailing.  The  testator  bequeaths 
pei-sonalty  to  trustees  upon  trust  to  purchase  land  and  convey  it  to  B.  and  C. 


Ch.  1)  THE    NATURE    OF    DESCENT.  401 

SHEPARD  V.  TAYLOR. 

(Supreme  Court  of  Rhode  Island,  1SS5.     15  R.  I.  204,  3  Atl.  382.) 

Stiness,  J,  John  Taylor  devised  an  interest  in  real  estate,  in  Provi- 
dence, to  his  son,  William  H.  Taylor,  in  trust  for  the  use  and  benefit 
of  another  son,  Alexander,  and  his  heirs,  v^^ith  power  to  appoint  a 
successor,  by  will  or  otherwise,  for  the  support  of  the  trust;  or  to 
convey  the  estate  to  said  Alexander  or  his  heirs,  when  he  might  think 
proper.  Alexander  died  leaving,  besides  his  widow,  a  son,  Alexander,. 
to  whom  the., tmste.e,.s,ubseg^uently  conveyed  the  estate  by  deed,  in  fee 
Alexan der^  Jr.^ .  died  in  May,  1882,  a  minor,  and  leaving  no  issue 
The  complainant,  lessee  of  the  estate,  files  this  bill  of  interpleader  to  -. 

determine  his  liability  for  rent,  whether  to  Martha  O.  Taylor,  mother  u/-^''''^ 
of  Alexander,  Jr.,  who  claims  as  his  heir  at  law ;  or  to  the  other  re-  'j 
spDTtdefitsrwTio"^TaTm  that  this  is  ancestral  estate  to  which,  under  our 
statute,  they  are  entitled  as  "the  kin,  next  to  the  intestate,  of  the  blood 
of  the  person  from  whom  such  intestate  came  or  descended.*'  "  As 
AlcAdiidCr,  Jr.,  hacT  the  absolute  title  to  the" estate,  upon  His  death  it 
vested  in  his  mother  as  his  heir  at  law,  unless  it  was  ancestral  estate, 
in  which  case  it  vested  in  his  paternal  kindred.  The  simple  questioii 
to  be  determined,  then,  is  whether  the  estate  came  "by  descent,  gift, 
or  devise  from  the  parent  or  other  kindred  of  the  intestate."  This 
involves  two  inquiries:     First,  how  did  Alexander,  Jr.,  acquire  his 

Of  course,  If  both  B.  and  C.  die  before  the  testator  there  is  an  utter  end  of 
the  trust;  the  testator's  next  of  kin  will  become  entitled  to  the  personal 
estate  and  will  become  entitled  to  it  as  personalty — for  there  is  no  trust  for 
turning  it  into  realty.  But  suppose  a  partial  failure — C.  dies  before  the  tes- 
tator but  B.  outlives  him — or  the  gift  fails  in  whole  or  in  part  owing  to  some 
rule  of  law,  e.  g.  the  rule  against  perpetuities,  or  the  testator  has  forgotten  • 
to  declare  trusts  of  some  share  of  the  land  that  Is  to  be  bought.  Whatever 
he  has  not  effectually  disposed  of  his  next  of  kin  will  take,  not  his  heir  at 
law,  he  has  shown  no  preference  for  his  heir  at  law,  whichever  party  is  to 
succeed  must  claim  under  the  law  of  intestate  succession  which  gives  per- 
sonalty to  the  next  of  kin.  Cogan  v.  Stephens,  5  L.  J.  Ch.  (N.  S.f  17.  But 
again  the  question  arises  on  the  death  of  one  of  these  next  of  kin  who  dies 
before  any  land  is  purchased — who  will  become  entitled,  his  real  or  his  per- 
sonal representative?  His  real  representative — his  heir  at  law,  or  perhaps 
a  devisee  of  'all  my  realty';  for  what  he  becomes  entitled  to  is  realty,  for 
It  is  a  share  in  a  fimd  of  money  that  is  subject  to  an  existing  trust  for  the 
purchase  of  land.  Curteis  v.  Wormald,  10  Ch.  D.  172."  Maitland's  Equity 
and  The  Forms  of  Action  at  Common  Law,  219-222. 

On  when  there  is  such  a  failure  of  testator's  purpose  or  object  as  to  pre- 
clude the  application  of  the  doctrine  of  equitable  conversion,  see  20  L.  R.  A. 
(N.  S.)  117,  note.     On  equitable  conversion  by  will,  see  5  Am.  St.  Rep.  141 
note.     See,  also,  Craig  v.  Leslie,  3  Wheat.  uGo,  4  L.  Ed.  4G0  (1818) ;    West  Vir- 
ginia Pulp  &  Paper  Co.  v.  Miller  (C.  C  A.)  176  Fed.  284  (1909). 

17  As  follows:  Pub.  St.  R.  I.  c.  187,  §  6:  "When  the  title  to  any  real  estate 
of  inheritance,  as  to  which  the  person  having  such  title  shall  die  intestate, 
came  by  descent,  gift,  or  devise,  from  the  parent  or  other  kindred  of  the  intes- 
tate, and  such  intestate  die  without  children,  such  estate  shall  go  to  the  kin, 
next  to  the  intestate,  of  the  blood  of  the  person  from  whom  such  estate  came 
or  descended,  if  any  there  be." — Rep. 

Cost.  Wills — 26 


402  DESCENT.  (Part  2 

title?  Second,  what  is  the  rule  to  be  followed  when  this  is  ascer- 
tained? 

During  the  life  of  his  father  the  title  subsisted  in  two  parts:  the 
legal  title  in  the  trustee;  the  equitable  title  in  the  father.  Upon  the 
death  of  Alexander,  St.,  unquestionably  his  son  took  the  equitable  title 
by  descent.  When  the  trustee  conveyed  the  legal  title  to  him,  what 
was  the  nature  of  the  title  thus  acquired?  Clearly,  it  was  not  a  title 
by  descent,  for  it  did  not  come  to  him  from  parent  or  kindred  by  oper- 
ation of  law.  Neither  was  it  a  title  by  devise.  Alexander,  Jr.,  was 
not  named  in  the  will,  nor  was  there  any  limitation  in  his  favor,  be- 
yond that  which  showed  the  devise  of  an  equitable  fee  to  his  father. 
Upon  a  conveyance  by  the  trustee,  the  father  could  have  disposed  of 
the  entire  estate,  without  reference  to  the  son.  Whatever  rights  the 
son  had  under  the  will  were  simply  those  which  he  acquired  by  in- 
heritance of  his  father's  equitable  estate.  The  legal  estate  was  devised 
to  the  trustee,  with  a  discretionary  power.  The  conveyance  of  the 
legal  title  by  the  trustee  was  not  a  gift.  Of  course  the  word  "gift" 
is  not  used  in  the  statute  in  its  ancient  and  technical  application  to 
the  creation  of  an  estate  tail  (2  Bl.  Comm.  *316);  but  with  the  com- 
mon and  broader  meaning  of  a  voluntary  conveyance  (3  Washb.  Real 
Prop.  [3d  Ed.]  305).  In  this  sense,  however,  there  was  no  gift  of 
the  legal  estate  from  the  grandfather  to  Alexander,  Jr.  It  did  not  go 
to  him,  but  to  the  trustee ;  and  the  trustee  might  have  conveyed  it  to 
Alexander,  Sr.,  had  he  chosen  to  do  so.  There  was  no  direction  to 
convey  the  estate  to  Alexander,  Jr.  It  might  never  have  been  con- 
veyed to  him  and  yet  the  trust  under  the  will  have  been  fully  per- 
formed. The  deed  to  Alexander,  Jr.,  was  the  act  of  the  trustee,  not 
the  act  of  the  testator. 

Alexander's  rights  were  determined  by  his  inheritance  of  the  eq- 
uitable estate,  to  which  the  conveyance  of  the  legal  estate,  by  the  trus- 
tee, was  incident.  It  cannot,  then,  be  said  that  the  legal  estate  came 
to  him  by  gift  from  the  grandfather  through  the  conveyance  by  the 
trustee.  Was  it  a  gift  by  the  trustee?  This  cannot  be  maintained, 
for  the  deed  was  made  in  consideration  of  the  execution  of  the  trust 
and  the  equitable  claim  of  the  grantee  in  the  estate.  The  trustee  could 
not  at  that  time  have  disposed  of  it  to  any  other  person  without  a 
breach  of  his  trust.  It  was  not,  therefore,  a  voluntary  conveyance. 
It  appears,  then,  that  Alexander,  Jr.,  had  the  equitable  title  by  de- 
scent and  the  legal  title  by  purchase,  otherwise  than  by  gift  or  devise. 
In  such  a  case  what  is  the  rule  of  descent?  Cases  upon  this  point  are 
not  numerous,  but  they  are  sufficiently  clear. 

In  Goodright  v.  Wells,  Doug.  771,  Lord  Mansfield  puts  the  question, 
"Whether,  when  a  cestui  que  trust  takes  in  the  legal  estate,  possesses 
under  it,  and  dies,  the  legal  and  equitable  estate  shall  open  on  his  death, 
and  be  severed  for  the  different  heirs  ?"  He  then  says :  "No  case  has 
ever  existed  where  it  has  been  so  held ;   none  where  the  heir  at  law  of 


Ch.  1)  THE    NATURE   OF   DESCENT.  403 

one  denomination  has,  on  the  death  of  the  ancestor,  been  considered 
as  a  trustee  for  the  heir  at  law  of  another  denomination,  who  would 
have  taken  the  equitable  estate,  if  that  and  the  legal  estate  had  not 
been  united.  On  principle  it  seems  to  me  impossible ;  for  the  moment 
both  meet  in  the  same  person,  there  is  an  end  of  the  trust."  It  was, 
therefar£^Jield^Jn,.this  case,  the  legal  estate  in  fee  having  desceadecL 
from  the  mother  and  an  equitable  interest  in  fee  from  the  father,  that 
t'lT^^equTtabl e  *ti tl e  ni c r gc d  in  the  legal  title,  and  that  the  whole  estate 
should  follow  the  line  of  descent  of  the  legal  title.  Wade  v.  Paget, 
1  BroWfipSi.  3637also  in  1  Cox,  74.i« 

In  Selby  v.  Alston,  3  Ves.  Jr.  339,  where  the  equitable  title  descended 
ex  parte  paterna  and  the  legal  title  ex  parte  materna,  and  united  in 
the  same  person,  the  Master  of  the  Rolls,  afterwards  Lord  Alvanley, 
citing  Wade  v.  Paget,  said:  "There  Lord  Thurlow  lays  down  a  uni- 
versal proposition,  to  which  I  am  inclined  to  accede,  that  where  the 
estates  unite,  the  equitable  must  merge  in  the  legal.  That  was  the 
principle  of  the  opinion  of  the  judges  in  Goodright  v.  Wells;  and, 
upon  consideration,  I  am  inclined  not  to  lay  any  restriction  upon  or 
to  narrow  it  in  any  respect,  but  to  hold  that,  by  whatever  means, 
whether  by  conveyance  or  otherwise,  a  person  obtains  the  absolute 
ownership  at  law  of  the  estate,  though  he  acquired  that  by  an  equi- 
table title,  and  both  either  come  together  or  are  afterwards  united  in 
him,  the  legal  will  prevail ;  the  equitable  is  totally  gone  for  the  pur- 
pose of  being  acted  upon  by  any  person  in  this  court.  Therefore,  that 
being  to  be  laid  down  universally,  this  demurrer  must  be  allowed 
against  the  plaintiff  claiming  as  heir  ex  parte  paterna." 

Upon  this  authority  Chancellor  Kent,  in  Nicholson  v.  Halsey,  1 
Johns.  Ch.  (N.  Y.)  416,  holds  that  this  rule  may  now  be  "laid  down 
as  a  settled  principle."  Accarding_-to  this,  rule,  the  legal  title  to  the 
estate  in  question  is  the  controlling  title.    As  that  title  did  not  come  to 


18  In  Hopkinson  v.  Dumas,  42  N.  H.  296,  306,  307  (1861),  Sargent,  J.,  said  of 
Goodright  v.  Wells,  Douglass,  771  (1781) :  "It  was  there  learnedly  argued  that 
before  the  Statute  of  Uses  the  use  was  considered,  in  most  respects,  as  the 
complete  ownership  of  the  land,  that  the  estate  of  the  feoffee  was  subservient 
to  the  cestui  que  use,  and  that  the  former  could  do  nothing  to  defeat  the  in- 
terest of  the  latter,  unless  by  alienation  for  a  valuable  consideration  without 
notice;  that  the  Statute  of  Uses  completed  this  subserviency  by  consolidating 
the  legal  estate  with  the  use,  or  by  merging  the  legal  estate  in  the  equitable ; 
and  that  by  analogy  to  uses  thus  considered,  trust  estates  had  been  and 
should  be  held  to  be  the  solid  and  substantial  ownership  of  the  land,  and  the 
trustee  the  mere  instrument  of  conveyance;  that  where  a  party  holds  by  two 
titles,  the  law  considers  him  as  taking  by  the  best ;  that  the  trust  estate,  being 
the  best,  must  control  the  legal  estate.  But  the  court  held  otherwise,  deciding 
that  the  legal  estate  was  the  better  title,  and  that  the  equitable  title  was 
merged  the  moment  the  two  became  united  in  the  same  person ;  that  the  legal 
drew  after  it  the  equitable  estate,  and  that  the  latter  was  lost  in  the  former ; 
so  that,  upon  the  death  of  the  son  (the  person  in  whom  both  estates  had  been 
united),  the  estate  did  not  again  open,  and  that  the  trust  could  not  again  be 
revived." 


404  DESCENT.  (Part  2 

Alexander  Taylor,  Jr.,  by  descent,  gift,  or.  devise  froirLliis,parent-Qt___ 
other  kindred,  it  must  descend  and  pass  to  his  mother,  according  to 
the  provisions  of  Pub.  St.  R.  I.  c.  187,  §  1.    Decree  accordtngTy?^ 


19  On  rehearing  in  Shepard  v.  Taylor,  16  R.  I.  166,  177,  13  Atl.  105  (1888). 
StineSvS,  J.,  said:  "We  must  reiterate  that  Alexander,  Jr.,  took  nothing  under 
the  will.  Certainly  not  by  devise,  for  the  will,  in  terms,  gave  him  nothing. 
An  equitable  fee  was  given  to  his  father,  and  this  he  inherited.  He  then  got 
the  legal  estate  from  the  ti'ustee,  by  virtue  of  his  inheritance  of  the  equitable 
estatej  which  was  a  right  existing  outside  and  independent  of  the  will.  If  a 
stranger  had  bought  the  equitable  fee  of  Alexander,  Sr.,  he  would  equally 
have  been  entitled  to  a  conveyance  from  the  trustee.  But  no  one  would 
claim  in  such  a  case  that  he  took  either  by  devise  or  gift  under  the  will,  or 
by  gift  from  the  trustee.  Whether  the  word  'gift,'  as  used  in  the  statute,  be 
taken  in  a  technical  or  popular  sense,  it  does  not  cover  this  case,  since  Alex- 
ander, Jr.,  took  the  legal  estate  independently  of  the  will  by  virtue  of  his 
ownership  of  the  equitable  estate,  just  as  a  stranger  would  have  done  had  he 
become  the  owner  of  it.  In  other  words,  he  acquired  the  legal  estate  as  a  new 
estate  by  purchase.  The  uncles  of  Alexander,  Jr.,  contend,  however,  that 
William  H.  Taylor  did  not  convey  an  estate  by  his  deed,  but  only  executed 
a  power  of  appointment  under  the  will,  and  hence  that  Alexander,  Jr.,  took 
his  estate  under  the  will  by  virtue  of  the  appointment,  and  not  by  purchase 
under  the  deed.  We  do  not  think  this  is  so.  The  will  contained  no  limitation 
of  an  estate  in  favor  of  Alexander.  Jr.,  individually  or  as  one  of  a  class,  so 
as  to  leave  the  trustee  either  a  direction  or  discretion  when  to  convey.  If  it 
had,  undoubtedly  the  grantee  in  a  deed  from  the  trustee  would  take  under  the 
will  by  virtue  of  the  limitation  in  his  favor.  Neither  did  the  will  indicate  any 
intention  to  give  a  mere  power  of  appointment.  The  trustee  had  no  power  of 
selection  outside  of  the  ownership  of  the  equitable  estate.  The  estate  was  de- 
vised to  him  in  trust  to  hold,  and  in  his  discretion  to  convey.  This  discre- 
tion, at  most,  could  only  apply  to  the  time  and  circumstances  of  the  convey- 
ance ;  and  the  decision  in  Taylor  v.  Taylor,  9  R.  I.  119,  was  to  this  effect. 
*  *  *  If,  then,  Alexander,  Jr.,  inheriting  the  equitable  estate  from  his  fa- 
ther, received  the  legal  estate  on  that  consideration  and  in  execution  of  the 
trust,  he  became  the  owner  of  the  entire  estate  neither  by  gift  nor  devise 
from  the  testator,  nor  by  gift  from  the  [trustee]  uncle." 


Ch.  2)  PERSONS   TAKING   BY   DESCENT.  406 

CHAPTER  II 
PERSONS  TAKING  BY  DESCENT 


SECTION  1.— THE  WIDOW^'AS  "HifIR" 


PEABODY  V.  COOK. 

(Supreme  Judicial  Court  of  Massachusetts.     Norfolk.  1909.     201  Mass.  21&  87 

N.  E.  466.) 

RuGG,  J.  This  is  a  petition  by  the  trustee  under  the  will  of  Isaac 
Cook  for  leave  to  convert  certain  real  and  personal  estate  into  cash, 
and  distribute  the  proceeds  to  such  persons  as  may  be  entitled  thereto 
under  the  provisions  of  the  will.  The  trustees  were  directed,  by  the 
seventh  and  eighth  clauses  of  the  will,  to  hold  certain  real  and  per- 
sonal property  upon  the  trust,  first,  to  pay  the  income  thereof  to  Wil- 
liam W.  Cook,  a  grandson  of  the  testator,  during  his  life,  and  to  his 
wife,  Frances  A.,  if  she  survived  him,  during  her  life.  The  trust  was 
to  terminate  upon  the  decease  of  the  survivor  of  these  two,  and  the 
trustees  were  directed  as  to  the  property  held  under  clause  7  to  there- 
upon convey  the  estate  "to  and  among  the  right  heirs  at  law  of  said 
William  W.  Cook,  agreeably  to  the  statutes  of  Massachusetts  regu- 
lating the  descent  of  intestate  estates,  the  issue  of  any  deceased  child 
taking  its  parent's  share."  As  to  the  property  held  under  clause  8, 
they  were  directed  to  distribute  the  property  "to  and  among  the  right 
heirs  at  law  of  the  said  Wilham  W.  Cook  agreeably  to  the  statutes  of 
Massachusetts  regulating  the  descent  and  distribution  of  intestate  es- 
tates, the  issue  of  any  deceased  child  taking  its  parent's  share."  Wil- 
liam W.  Cook  and  Frances  A.  Cook  both  survived  the  testator,  and 
subsequently  Frances  A.  Cook  deceased,  having  had  five  children  by 
William  W.  Cook,  three  of  whom  are  now  living,  the  others  having 
died  without  issue.  Thereafter  William  W.  Cook  married  as  his  sec- 
ond wife  the  appellant,  Harriet  F.  Cook,  who  has  borne  by  him  two 
children,  both  now  living,  and  who  has  survived  him.  William  W. 
Cook  died  within  a  year  prior  to  the  filing  of  this  petition. 

The  question  presented  is  whether  the  second  wife,  Harriet  F.  Cook, 
shares  under  the  provisions  of  the  will  of  Isaac  Cook,  or  whether  the 
.  property  is  to  be  divided  wholly  among  the  children  of  William  W. 
Cook.  If  the  word  "right"  had  been  omitted  from  the  clauses  above 
quoted  governing  the  final  distribution  of  the  estate,  there  would  be 
no  question  but  that  the  second  wife  would  be  entitled  to  share  in  the 


406  DESCENT.  (Part  2 

estate.  Rev.  Laws,  c.  140,  §  3,  cl.  3,  creates  a  surviving  wife  a  stat- 
utory heir  of  a  deceased  husband,  who  leaves  issue.  It  is  true  that 
by  Rev.  Laws,  c.  132,  §  1,  the  wife  is  given  the  right  to  waive  her 
inheritance  and  claim  her  dower  at  common  law,  but  we  construe  this 
statute  to  mean  that  the  wife  stands  upon  the  same  footing  respect- 
ing the  interest  in  the  real  estate  of  a  deceased  husband,  where  the 
deceased  leaves  a  widow  and  issue,  as  she  does  where  the  deceased 
leaves  no  issue,  in  which  event  she  is  given  at  least  five  thousand  dol- 
lars and  one-half  the  remaining  real  and  personal  estate.  It  has  been 
repeatedly  held  that  in  the  latter  event  the  wife  is  a  statutory  heir. 
She  is  included  among  those  who  take  real  estate  in  fee  in  case  of 
intestacy,  which  is  the  familiar  definition  of  heir  at  law.  Proctor  v. 
Clark,  154  Mass.  45,  27  N.  E.  673,  12  L.  R.  A.  721;  Smith,  Peti- 
tioner, 156  Mass.  408,  31  N.  E.  387 ;  International  Trust  Co.  v.  Wil- 
liams, 183  Mass.  173,  66  N.  E.  798;  Holmes  v.  Holmes,  194  Mass. 
552,  559,  80  N.  E.  614;  Gray  v.  Whittemore,  192  Mass.  367,  381,  78 
N.  E.  422,  10  L.  R.  A.  (N.  S.)  1143,  116  Am.  St.  Rep.  246. 

The  only  doubt  arises  from  the  presence  of  the  word  "right"  before 
"heirs"  in  these  two  clauses  of  the  will.  These  two  words  have  been 
adverted  to  in  Brown  v.  Wright,  194  Mass.  540,  545,  80  N.  E.  612, 
and  in  Boston  Safe  Deposit  &  Trust  Co.  v.  Blanchard,  196  Mass.  35, 
81  N.  E.  654,  but  their  meaning  was  not  defined  in  either  of  these 
cases.  The  phrase  "right  heirs"  has  been  before  other  courts  in  sev- 
eral instances,  and  has  generally  been  held  to  mean  the  same  as  heirs 
at  law.  Guerard  v.  Guerard,  73  Ga.  506,  510 ;  Ballentine  v.  Wood, 
42  N.  J.  Eq.  552,  9  Atl.  582;  Brown  v.  Wadsworth,  168  N.  Y.  225, 
61  N.  E.  250;  Gordon  v.  Small,  53  Md.  550,  560;  Sladen  v.  Sladen, 
3  J.  &  H.  369 ;  In  re  Ferguson,  24  Ont.  App.  61.  See  1  Washburn 
on  Real  Property  (6th  Ed.)  §  150.  In  several  English  cases  it  has 
been  said  that  the  words  "right  heirs"  mean  the  heirs  at  common  law. 
Garland  v.  Beverly,  9  Ch.  Div.  213,  220 ;  De  Beauvoir  v.  De  Beauvoir, 
3  House  of  Lords  Cases,  524,  551;  Young  v.  Gibbons,  [1902]  1  Ch. 
336,  647. 

There  is  ground  for  argument  that,  applying  the  principle  of  the 
English  cases  to  the  present  statutory  provisions  in  Massachusetts  in 
the  light  of  the  history  of  our  statutes  touching  the  determination  of 
heirs  of  persons  who  decease  intestate,  the  phrase  "right  heirs"  means 
nothing  more  than  statutory  heirs.  See,  also,  Mason  v.  Baily,  6  Del. 
Ch.  129,  14  Atl.  309;  In  re  McCrea,  180  Pa.  81,  36  Atl.  412.  A  dif- 
ficulty might  arise  in  determining  what  the  common  law  is  (if  that  in- 
terpretation should  be  adopted)  in  view  of  primogeniture  under  Eng- 
lish common  law  and  its  early  abolition*  by  statute  in  the  colony  and 
province  of  which  this  commonwealth  is  the  successor.  But  it  is  not 
necessary  to  determine  whether  the  phrase  under  all  circumstances 
necessarily  is  equivalent  to  legal  heirs  or  whether  it  may  sometimes 
have  the  meaning  of  heirs  by  the  blood,  or  possibly  soTie  other  sig- 
nificance, for  it  is  manifest  from  the  will  now  under  consideration 


Cll.  2)  PERSONS  TAKING   BY   DESCENT.  407 

that  the  testator  intended  to  have  his  estate  distributed  according  to 
the  statutes  of  descent.  We  need  only  apply  the  cardinal  rule  of  will 
construction,  which  is  to  ascertain  the  intent  of  the  testator  and  give 
it  effect,  unless  prevented  by  some  inflexible  rule  of  law. 

Attributing  to  the  phrase,  "right  heirs,"  standing  by  itself,  the  re- 
strictive force  claimed  by  the  children  of  William  W.  Cook,  it  is  al- 
together overborne  by  the  emphatic,  technically  accurate  and  indis- 
putably clear  language  of  the  will  immediately  succeeding  the  words, 
"the  right  heirs  at  law  of  William  W.  Cook,"  namely,  "agreeably  to 
the  statutes  of  Massachusetts  regulating  the  descent  of  intestate  es- 
tates." The  testator  thus  makes  plain  his  intention  to  incorporate  into 
his  will  as  a  part  of  its  terms  the  statute  as  to  the  descent  of  real  es- 
tate of  an  intestate,  as  it  might  be  at  the  time  the  will  became  oper- 
ative. "Right"  as  descriptive  of  "heirs"  is  a  word  unknown  in  our 
statutes,  which  employ  only  "heirs."  If  anything  beyond  the  natural 
sense  of  the  words  of  the  will  was  needed  to  reach  this  conclusion,  it 
is  to  be  found  in  another  portion  of  clause  7,  where,  after  having  pro- 
vided for  the  conversion  of  the  entire  trust  funds  thereby  created 
into  personal  property,  in  a  certain  event  which  did  not  arise,  he  pro- 
ceeds to  say  that  after  the  death  of  both  Frances  A.  and  William  W. 
Cook  the  estate  should  be  divided,  "to  and  among  the  right  heirs  at 
law  of  said  William  W.  Cook,  agreeably  to  the  statutes  of  Massachu- 
setts regulating  the  distribution  of  intestate  estates,"  thereby  recog- 
nizing the  difference  between  the  distribution  of  personal  property  and 
the  descent  of  real  estate,  and  specifically  providing  that  such  distribu- 
tion should  be  according  to  the  statute  regulating  distribution,  al- 
though he  still  employs  the  phrase,  "right  heirs."  "Right"  becomes, 
in  the  light  of  the  context  in  which  it  is  used,^t  best  an  adjective  of 
dignity  or  approval  of  the  legislative  determination  of  the  persons  who 
constitute  "heirs." 

As  there  is  real  estate  devised  by  both  clauses  of  the  will,  the  whole 
property,  both  real  and  personal,  will  go  to  those  who  are  technically 
described  as  heirs,  there  being  no  indication  that  more  than  one  class 
is  intended.  Gardner  v.  Skinner,  195  Mass.  164,  80  N.  E.  825.  The 
decree  of  the  probate  court  is  reversed,  and  a  decree  should  be  en- 
tered giving  one-third  of  the  estate  to  Harriet  F.  Cook,  the  second 
wife,  absolutely,  and  dividing  the  rest  equally  among  the  five  children 
of  William  W.  Cook.     So  ordered.^ 

1  See  Smith  v.  Winsor,  2S9  111.  567,  88  N.  E.  482  (1909) ;  Wesion  v.  Weston, 
38  Ohio  St.  473,  478  (1882).  Compare  Leavitt  v.  Dunn,  56  N,  J.  Law,  309,  28 
Atl.  590,  44  Am.  St.  Rep.  402  (1893). 


408  DESCENT.  (Part  2 


SECTION  2.— PRETERMITTED  HEIRS 


In  re  WARDELL'S  ESTATE. 
(Supreme  Court  of  California,  1881.    57  Cal.  484.) 

McKee,  J.  Ada  Wardell,  a  resident  of  the  city  and  county  of  San 
Francisco,  died  February  25th,  1875,  leaving,  surviving  her,  her  hus- 
band, two  sons,  and  a  daughter.  Before  her  death,  she  had  made  her 
last  will  and  testament,  whereby  she  disposed  of  all  her  real  and  per- 
sonal estate  to  her  husband  for  life,  and  the  remainder  to  her  two 
sons.  No  provision  was  made  in  the  will  for  the  daughter.  Her  name 
was  not  mentioned  in  it,  and  it  does  not  appear  by  anything  in  the 
will  itself  that  the  omission  was  intentional.  The  daughter  was  born 
out  of  lawful  wedlock.  She  had  never  been  legitimated  by  the  sub- 
sequent intermarriage  of  her  parents,  or  by  acknowledgment  or  adop- 
tion of  her  father.  Having  been  omitted  from  the  will,  she  resisted 
the  disposition  of  the  property  made  by  it,  claiming  that,  as  pretermit- 
ted heir  of  her  mother,  she  was  entitled  to  a  distributive  share  in  the 
estate.  The  probate  court  recognized  the  validity  of  the  claim,  and 
in  the  final  distribution  of  the  estate  adjudged  her  to  be  entitled  to 
the  same  distributive  share  in  the  estate  of  her  deceased  mother  as 
though  the  mother  had  died  intestate. 

The  sons  appealed  from  this  decision,  and  claim  that  the  daughter 
of  their  deceased  mother,  being  an  illegitimate  child,  is  not  entitled 
to  succeed  by  testamentary  succession  to  any  portion  of  her  estate. 

But  by  section  1307  of  the  Civil  Code  it  is  provided,  that  "when  any 
testator  omits  to  provide  in  his  will  for  any  of  his  children,  or  for  the 
issue  of  any  deceased  child,  unless  it  appears  that  such  omission  was 
intentional,  such  child,  or  the  issue  of  such  child,  must  have  the  same 
share  in  the  estate  of  the  testator  as  if  he  had  died  intestate."  In  other 
4vords,  the  child  succeeds  to  the  same  portion  of  the  testator's  real 
and  personal  property  that  he  would  have  succeeded  to  if  the  testa- 
tor had  died  intestate.  Section  1306,  Civ.  Code.  He  takes  by  suc- 
cession, like  one  born  after  the  making  of  the  will. 

It  is  contended,  however,  that  the  word  "children,"  as  used  in  this 
section,  includes  only  legitimate  children,  because  it  is  a  rule  of  con- 
struction that  whenever  Legislatures  use  a  term  without  defining  it, 
which  is  well  known  in  the  English  law,  they  must  be  supposed  to  use 
it  in  the  sense  in  which  it  is  understood  in  the  English  law ;  and  as  the 
Legislature  has  made  no  attempt  to  define,  limit,  or  qualify  the  term, 
or  to  change  in  the  least  its  common-law  signification,  therefore,  the 
term  must  mean  only  those  bom  in  lawful  wedlock. 

It  is  well  settled  that  at  common  law  the  word  "children"  means 
those  born  in  lawful  wedlock;    and  such,  indeed,  has  been  its  legal 


Ch.  2)  PERSONS   TAKING   BY    DESCENT.  409 

meaning  in  every  known  system  of  law.  Those  only  were  consid- 
ered as  legitimate  whose  blood  was  traceable  to  the  legal  marriage  of 
a  common  pair.  A  person  not  born  in  lawful  wedlock  was  not  re- 
garded as  a  member  of  the  group  known  in  law  as  the  faipily;  and 
consequently  was  not  entitled  to  the  privileges  of  members  of  the 
family,  or  to  any  rights  of  inheritance  or  succession.  Yet  every  per- 
son, whether  born  in  lawful  wedlock  or  not,  was  recognized  as  a  mem- 
ber of  the  community,  and  his  relations  to  the  community,  and  to  each 
member  of  it,  and  in  respect  of  the  things  appertaining  to  it,  were 
matters  which  were  regulated  by  law.  Indeed,  the  object  of  all  law  is 
to  ascertain  and  settle  the  status  of  individuals  in  the  social  system, 
and  to  regulate  the  rights  and  duties  of  which  each  is  the  center. 

In  relation  to  children,  the  common  law  was  a  rule  of  succession  to 
an  estate.  No  one  could  succeed  to  an  estate  in  land  who  was  not 
born  in  lawful  wedlock.  Such  continued  to  be  the  rigorous  rule  of 
that  law  until  the  reign  of  Edward  III,  when  the  principle  of  descent 
was  changed  in  favor  of  bastards  whose  parents  afterwards  inter- 
married. This  modification  of  the  condition  of  such  children  under 
the  common  law  was  effected,  as  Blackstone  says,  "by  the  transcend- 
ant  power  of  an  act  of  Parliament."  And  by  the  same  agency  the 
status  of  persons  who  had  no  rights  of  inheritance  or  succession  under 
the  common  law,  has  been,  under  modern  law,  greatly  changed.  So 
that  now  persons  who,  as  bastards,  had  no  rights  of  inheritance,  are, 
under  the  law  in  most,  if  not  all,  of  the  states  of  the  Union,  capable 
of  inheriting  and  transmitting  inheritance.  The  legal  meaning  of 
the  word  "children"  has,  therefore,  been  greatly  enlarged  from  what 
it  was  at  common  law. 

If  courts  were  now  to  restrict  the  word  to  its  common-law  meaning, 
all  children  born  of  an  unlawful  marriage,  all  children  by  adoption  or 
acknowledgment  of  their  father,  and  all  children  whose  parents  inter- 
married subsequent  to  their  birth,  would  be  excluded  from  rights  of 
inheritance  or  succession.  But  by  statute  law,  the  offspring  of  mar- 
riages null  in  law  (section  84,  Civ.  Code),  children  born  out  of  lawful 
wedlock  whose  parents  subsequently  intermarried  (section  215,  Id.), 
and  children  by  acknowledgment  or  adoption  of  their  father  (sections 
224,  227,  228,  and  230,  Id.),  are  all  legitimate.  These,  although  in- 
capacitated at  common  law  from  succeeding  to  any  rights  of  their 
father,  are  regarded  for  all  purposes  as  legitimate  from  the  time  of 
their  birth.  Between  them  and  the  legitimate  offspring  of  the  same 
parents  the  law  has  established  cognatic  relations,  and  either  is  as 
capable  as  the  other  of  exercising  inheritable  rights.  Hence  the  term 
"children,"  as  used  in  section  1307  of  the  law  of  succession,  must  re- 
late to  status,  not  to  origin — to  the  capacity  to  inherit,  not  to  the  le- 
gality of  the  relations  which  may  have  existed  between  those  of  whom 
they  may  have  been  begotten.  The  word  has,  therefore,  a  statutory 
and  not  a  common-law  meaning;    and  its  meaning  includes  all  chil- 


410  DESCENT.  (Part  2 

dren  upon  whom  has  been  conferred  by  law  the  capacity  of  inher- 
itance. 

And  the  state  has  regulated  the  inheritable  capacity  of  all  children 
illegitimate  by  birth.  Those  who  have  not  been  legitimated  by  the 
will  of  their  father,  in  any  of  the  modes  authorized  by  law,  have  been 
rendered  capable  of  inheriting  from  their  mother.  By  section  1387 
of  the  Civil  Code,  it  is  declared  that  "every  illegitimate  child  is,  in 
all  cases,  an  heir  of  his  mother,  and  inherits  her  estate,  in  whole  or  in 
part,  as  the  case  may  be,  in  the  same  manner  as  if  he  had  been  born 
in  lawful  wedlock."  Speaking  of  such  a  law  passed  by  the  state  of 
Maryland,  Mr.  Chief  Justice  Taney  has  said :  "It  seems  to  have  been 
supposed  by  the  Legislature  that,  as  there  could  have  been  no  doubt 
of  the  relation  which  the  mother  bears  towards  her  illegitimate  chil- 
dren, the  reasons  of  policy,  which  must  always  preclude  such  children 
from  clai§|ing  the  inheritance  of  any  one  upon  the  ground  that  he  was 
their  father,  do  not  apply  to  the  property  of  the  mother.  To  this  ex- 
tent, therefore,  the  right  to  inherit  is  given  by  the  statute;  and  it  would 
appear  to  have  been  given  upon  the  principle  that  it  is  unjust  to  pun- 
ish the  offspring  for  the  crime  of  the  parents." 

The  respondent  was,  therefore,  though  illegitimate  by  birth,  en- 
dowed by  the  statute  with  inheritable  blood.  She  possessed  the  same 
inheritable  rights  as  heir  of  her  mother  as  if  born  in  lawful  wedlock. 
Rogers  v.  Weller,  5  Biss.  166,  Fed.  Cas.  No.  12,022 ;  Garland  v.  Har- 
rison, 8  Leigh  (Va.)  368;  Bennett  v.  Toler,  15  Grat.  (Va.)  588,  78 
Am.  Dec.  638.  As  an  heir  of  her  mother,  she  differed  nothing  in 
law  from  the  other  children,  so  far  as  the  rights  of  inheritance  which 
had  been  conferred  upon  her  by  law.  To  the  full  extent  of  those 
rights  she  was  entitled  to  all  the  privileges  and  immunities  of  heir- 
ship. If  her  mother  had  died  intestate,  her  right  to  a  distributive 
share  of  the  estate  would  have  been  unquestionable.  Dying  testate, 
the  legal  relation  between  mother  and  daughter  was  not  impaired  or 
destroyed.  The  latter  was  still  a  legitimate  heir,  as  much  so  as  the 
children  legitimate  by  birth,  for  the  law  made  her  an  heir  to  the  same 
extent  "as  if  she  had  been  born  in  lawful  wedlock." 

It  is  not  to  be  supposed  that  the  law  which  attached  to  her  person 
the  rights  and  duties  of  inheritance,  and  endowed  her  with  the  ca- 
pacity to  exercise  them,  meant  to  leave  her  a  bastard,  under  the  dis- 
abilities of  the  common  law,  if  the  mother  unintentionally  omitted  to 
make  provision  for  her  in  her  will.  When  placed  by  law  in  the  state 
and  condition  of  heir,  and  invested  with  the  character  and  capacity  of 
heir,  all  the  rights,  privileges,  and  legal  consequences  incident  to  that 
relation  were  tacitly  conferred  upon  her.  Swanson  v.  Swanson,  2 
Swan,  446.  And  in  the  presence  of  the  will  of  her  mother  in  which 
her  name  was  omitted,  she  stood  clothed  in  law  with  the  same  rights 
to  inherit  as  any  one  of  the  legitimate  children  would  have  stood  had 
he  been  omitted.  The  omission  did  not  affect  her  legal  rights,  unless 
it  was  expressed  on  the  face  of  the  will  to  have  been  intentional.    But 


Ch.  2)  PERSONS   TAKING    BY    DESCENT.  411 

no  such  intention  appears  in  the  will ;  the  omission  was  therefore  un- 
intentional. Estate  of  Garraud,  35  Cal.  336 ;  Estate  of  Utz,  43  Cal. 
200;  Bush  v.  Lindsey,  44  Cal.  121.  And,  as  pretermitted  heir  of  her 
mother,  the  respondent  was  entitled  to  a  distributive  share  of  the  es- 
tate.2 

Judgment  affirmed. 


PEET  V.  PEET  et  al. 

(Supreme  Court  of  Illinois,  1907.     229  111.  341,  82  N.  E.  376,  13  L.  R.  A.  [N. 

S.]  780.) 

Bill  for  partition  by  Henry  J.  Peet,  as  guardian  ad  litem  of  Telfair 
B.  Peet,  a  minor,  against  Jane  Creighton  Peet  and  others.     *     *     * 

On  May  28,  1902,  William  Creighton  Peet 'made  and  executed  a 
last  will  and  testament,  which;  omitting  the  formal  parts  thereof,  is 
as  follows:  "I  give,  devise  and  bequeath  all  my  property,  wherever 
situated,  to  my  wife,  Jane  Creighton  Peet."  The  youngest  son  of  the 
testator,  Telfair  B.  Peet,  was  born  about  IV2  years  after  the  execu- 
tion of  the  will.  The  other  son,  Creighton  Peet,  was  about  3  years 
old  at  the  date  of  the  will.  Jane  Creighton  Peet  claims  the  entire  half 
interest  in  the  testator's  land  in  question,  while  the  guardian  ad  litem 
of  Telfair  B.  Peet  claims  that  the  devise  under  the  will  should  be 
abated  to  raise  for  the  after-born  child  such  a  portion  of  the  testator's 
estate  as  he  would  have  been  entitled  to  receive  if  the  testator  had  died 
intestate.     *     *     * 

The  circuit  court  found  that  Jane  Creighton  Peet  was  the  owner  in 
fee,  under  the  will,  of  the  real  estate  of  which  the  testator  died  seised, 
and  that  Telfair  B.  Peet  had  no'  interest  whatever  in  the  premises. 
Telfair  B.  Peet,  by  his  guardian  ad  litem,  appeals  to  this  court,  and 

2  But  see  Kent  v.  Barljer,  2  Gray  (Mass.)  535  (1854).  That  a  child  born  out 
of  lawful  wedlock  before  the  date  of  its  father's  will  and  rendered  legitimate 
by  the  marriage  of  its  father  and  mother  after  the  date  of  the  will  is  not  an 
afterborn  child  entitled  to  take  as  if  the  father  had  died  intestate  is  held  m 
Appeal  of  Mcculloch,  113  Pa.  247,  6  Atl.  253  (1SS6).  But  compare  cases  on 
effect  of  adoption  in  note,  post,  pp.  420,  421. 

On  a  gift  in  a  will  to  children  as  applied  to  illegitimate  children,  see  In  re 
Sander's  Estate,  126  Wis.  600.  105  N.  W.  1064  (1900) ;  In  re  Eve  [1909]  1  Ch. 
796.  On  the  rights  of  children  omitted  from  a  will  of  their  parent,  see  9 
Prob.  Rep.  Ann.  3,  note;  8  Am.  Prob.  Rep.  338,  note. 

Pretermitted  heirs  include  posthumous  children.  Bowen  v.  Hoxie,  137 
Mass  527  (1884) ;  Northrop  v.  Marquam,  16  Or.  173,  18  Pac.  449  (1888).  And 
children  born  after  the  execution  of  the  will  and  before  the  testator's  death. 
Owens  V.  Haines,  199  Pa.  137,  48  Atl.  859  (1901) ;  Walker  v.  Hyland,  70  N.  J. 
Law,  69,  56  Atl.  268  (1903) ;  Watkins  v.  Watkins,  88  Miss.  148,  40  South.  1001 
(1906)  As  well  as  children  born  before  the  execution  of  the  will  and  over- 
looked On  what  is  a  "mention"  of  children,  see  Tavshanjian  v.  Abbott,  130 
App.  Div.  863,  115  N.  Y,  Supp.  938  (1909).     See,  also,  note  56,  ante,  p.  320. 

In  Hobson  v.  Hobson,  40  C  olo.  332.  91  Pac.  929  (1907).  a  will  was  rendered  nu- 
gatory except  as  to  the  appointment  of  an  executor  because  a  posthumous  child 
took  one  half  the  estate,  as  it  was  not  provided  for  in  the  will,  and  the  widow 
elected  to  take  the  other  half  by  renouncing  the  will. 


•412  DESCENT.  (Part  2 

insists  that  the  court  erred  in  refusing  to  hold  that  Telfair  B.  Peet 
was  the  owner  of  an  undivided  one-fourth  interest  in  the  premises 
described  in  the  bill. 

ViCKERS,  J.3  Section  10  of  chapter  39,  Kurd's  Rev.  St.  1905,  pro- 
vides as  follows :  "If,  after  making  a  last  will  and  testament,  a  child 
shall  be  born  to  any  testator,  and  no  provision  be  made  in  such  will 
for  such  child,  the  will  shall  not  on  that  account  be  revoked;  but 
unless  it  shall  appear  by  such  will  that  it  was  the  intention  of  the  tes- 
tator to  disinherit  such  child,  the  devises  and  legacies  by  such  will 
granted  and  given,  shall  be  abated  in  equal  proportions  to  raise  a  por- 
tion for  such  child  equal  to  that  which  such  child  would  have  been 
entitled  to  receive  out  of  the  estate  of  such  testator  if  he  had  died  in- 
testate, and  a  marriage  shall  be  deemed  a  revocation  of  a  prior 
will."    *    *    * 

Second.  Appellant's  second  proposition  is  that  under  section  10  of 
chapter  39  of  our  statutes  no  evidence  outside  the  will  itself  is  ad- 
missible, and  that  under  said  section  and  the  words  of  the  will  ap- 
pellant is  entitled  to  a  one-fourth  interest  in  the  real  estate  involved. 
In  so  far  as  the  court  below  permitted  parol  evidence  of  the  testa- 
tor's statements,  either  before  or  after  the  making  of  the  will,  the  rul- 
ing is  clearly  erroneous.  The  statements  of  a  testator  cannot  be  re- 
ceived to  prove  what  is  intended  by  the  written  words  of  the  will. 
Where  an  issue  is  raised  as  to  the  testamentary  capacity  of  the  testa- 
tor, then  what  he  says  and  what  he  does,  if  not  too  remote  from  the 
time  when  the  will  was  executed,  becomes  original  evidence  and  is 
admissible  under  the  well-established  rules  of  evidence.  The  errone- 
ous ruling  of  the  court  on  the  admission  or  exclusion  of  evidence  will 
not  require  us  to  reverse  the  decree  if  upon  the  whole  record  a  proper 
conclusion  has  been  reached  and  there  is  competent  evidence  in  the 
record  sufficient  to  support  the  decree. 

Appellant  insists  that  section  10  of  chapter  39  ex  vi  termini  pre- 
cludes the  court  from  looking  to  anything  except  the  words  of  the  will 
itself.  This  argument  is  based  upon  the  phrase,  "unless  it  shall  ap- 
pear by  such  will  that  it  was  the  intention  of  the  testator  to  disinherit 
such  child";  his  contention  being  that  the  intention  of  the  testator 
must  be  expressed  in  words  in  the  will,  and  that  it  is  not  sufficient 
that  such  intention  is  disclosed  by  the  application  of  the  usual  rules 
of  interpretation,  especially  if,  in  the  application  of  those  rules,  parol 
evidence  must  be  resorted  to.  This  section  of  the  statute  was  not  en- 
acted for  the  purpose  of  working  a  change  in  the  law  relating  to  the 
construction  of  wills.  Manifestly,  it  was  never  intended  by  the  Legis- 
lature that  wills  to  which  this  section  applied  should  be  construed  by 
any  different  rule  than  other  wills  to  which  said  section  does  not  ap- 
ply.    In  a  legal  sense,  everything  pertaining  to  a  testamentary  dis- 

8  The  statement  of  facts  is  abbreviated,  and  part  only  of  tlie  majority  opin- 
ion is  given. 


Ch.  2)  PERSONS   TAKING   BY    DESCENT.  413^ 

position  of  property  must  appear  by  the  will,  but  it  often  becomes 
necessary  to  resort  to  extrinsic  evidence  to  determine  what  persons 
or  things  do,  in  fact,  appear  by  the  will.  The  language  of  the  will 
may  be  such  that  the  court  cannot  determine  with  certainty  what  in- 
tention is  expressed  in  the  will,  but  when  read  in  the  light  of  sur- 
rounding circumstances  the  court  can  clearly  see  what  before  was  not 
discernible.  It  was  not  discernible,  not  because  it  did  not  appear  from 
the  will,  but  because  the  reader  did  not  have  the  aid  of  the  lights  fur- 
nished by  the  surrounding  circumstances. 

By  way  of  illustrating  our  meaning,  take  Lord  Cheney's  Case,  5 
Rep.  Ch.  69.  There  the  testator  had  two  sons,  both  baptized  by  the 
name  of  "John."  He  devised  his  lands  to  his  son  John,  without  in 
any  way  designating  which  one  of  them  he  referred  to.  When  the 
testator  used  the  name  "John"  he  meant  a  particular  son,  but  the  ques- 
tion was:  Which  one  did  he  mean?  Upon  resorting  to  extrinsic  evi- 
dence it  was  shown  that  the  elder  John  had  been  long  absent  and  was 
supposed  to  be  dead,  while  the  younger  John  was  known  to  be  alive 
at  the  time  the  will  was  made.  Now,  in  the  light  of  these  circum- 
stances, it  was  readily  decided  that  the  younger  should  take  the  devise. 
Another  illustration  is  afforded  by  the  case  of  Bradley  v.  Rees,  113 
111.  327,  55  Am.  Rep.  432.  There  the  residuary  clause  devised  all 
the  remainder  of  the  testator's  lands  "to  the  four  boys."  The  testator 
had  seven  sons,  but  the  parol  proof  showed  that  three  of  them  were 
men,  married,  and  had  families  of  their  own,  while  four  of  them 
were  minors,  residing  with  the  testator.  It  was  held  that  the  testator 
intended  the  four  minors  to  have  the  estate.  In  these  and  all  like  cases 
where  a  resort  to  parol  evidence  is  allowable,  it  is  not  for  the  purpose 
of  importing  into  the  will  a  new  intention  not  expressed  in  the  will, 
but  for  the  purpose  of  enabling  the  court  to  determine  what  the  in- 
tention in  fact  is,  as  expressed  by  the  words  of  the  testator  in  the 
will. 

We  regard  the  case  of  Hawhe  v.  Chicago  &  Western  Indiana  Rail- 
road Co.,  165  111.  561,  46  N.  E.  240,  as  directly  in  point  and  conclu- 
sive against  the  contention  of  appellant  on  this  question.  Indeed,  we 
do  not  see  how  it  would  be  possible  to  sustain  appellant's  contention 
without  overruling  that  case.  There,  as  here,  the  will  gave  all  of  tes- 
tator's property,  real,  personal,  and  mixed,  of  every  kind  whatsoever, 
to  testator's  wife.  At  the  time  the  will  was  executed  the  testator  had 
two  children,  and  afterwards  a  third  child  was  born.  There  was  there, 
as  here,  no  mention  or  reference  to  the  children,  born  or  unborn.  Pa- 
rol evidence  was  admitted  there  of  the  same  g-eneral  character  that 
was  heard  in  this  case,  and  in  answering  the  argument  made  ag-ainst 
the  admissibility  of  such  evidence  this  court,  on  page  564  of  165  111., 
page  241  of  46  N.  E.,  said:  "But  we  do  not  think  the  evidence  ob- 
jected to  had  any  tendency  whatever  to  vary  or  change  the  intent  of 
the  testator  as  declared  in  the  will.  As  we  understand  the  record,  the 
evidence  was  not  offered  for  that  purpose.    The  object  of  the  evidence 


4.14  DESCENT.  (Part  2 

was  to  place  before  the  court  the  circumstances  attending  the  execu- 
tion of  the  will  in  support  of  and  in  aid  of  the  intention  of  the  testa- 
tor as  declared  in  the  will,  and  the  court,  in  the  exercise  of  its  discre- 
tion, had  the  right  to  hear  such  evidence.  In  the  discussion  of  this 
subject  it  is  said  in  Schouler  on  Wills  (section  579):  'But  to  aid  the 
context  of  the  instrument  by  extrinsic  proof  of  the  circumstances  and 
situation  of  the  testator  when  it  was  executed  is  constantly  permitted 
at  the  court's  discretion,  and  this  constitutes  a  proper — indeed,  often 
an  indispensable — matter  of  inquiry  when  construing  a  will,  for  what- 
ever a  will  may  set  forth  on  its  face,  its  application  is  to  persons  and 
things  external,  and  hence  is  admitted  evidence,  outside  the  instru- 
ment, of  facts  and  circumstances  which  have  any  tendency  to  give  ef- 
fect and  operation  to  the  terms  of  the  will,  such  as  the  names,  descrip- 
tions, and  designation  of  beneficiaries  named  in  the  will;  the  relation 
they  occupied  to  the  testator;  whether  the  testator  was  married  or 
single,  and  who  were  his  family;  what  was  the  state  of  his  property 
when  he  made  his  will,  and  when  he  died ;  and  other  like  collateral 
circumstances.  Such  evidence,  being  explanatory  and  incidental,  is 
admitted,  not  for  the  purpose  of  introducing  new  words  of  a  new  in- 
tention into  the  will,  but  so  as  to  give  an  intelligent  construction  to 
the  words  actually  used,  consistent  with  the  real  state  of  the  testa- 
tor's family  and  property — in  short,  so  as  to  enable  the  court  to  stand 
in  the  testator's  place,  and  read  it  in  the  light  of  those  surroundings 
under  which  it  was  written  and  executed' — citing  Little  v.  Giles,  25 
Neb.  313,  41  N.  W.  186,  and  Doe  v.  Hiscock,  5  Mees.  &  W.  363."  ' 

In  commenting  on  the  force  of  the  fact  that  the  testator  had  two 
children  living  at  the  time  the  will  was  made  which  were  in  no  way 
referred  to  or  mentioned  in  the  will,  this  court,  in  the  same  case  above 
cited  on  page  567  of  165  111.,  page  242  of  46  N.  E.,  used  the  following 
language :  "At  the  time  the  will  was  executed  by  the  testator  he  had 
two  children  then  living ;  one  four  and  the  other  two  years  old.  These 
children  were  excluded  from  taking  any  portion  of  the  testator's  es- 
tate by  the  will.  Is  it  reasonable  to  believe  that  the  testator  intended 
to  exclude  these  two  infants  and  not  at  the  same  time  exclude  another 
child  to  be  born  within  the  next  two  months  after  the  will  was  ex- 
ecuted? It  seems  plain,  if  the  testator  had  intended  to  make  any  dis- 
tinction between  his  children  then  born  or  unborn,  he  would  have  in- 
serted a  provision  in  his  will  manifesting  that  intention.  In  order  to 
disinherit  appellant  the  testator  was  not  required  to  state  the  fact  in 
express  terms  in  the  will.  It  is  enough  that  the  intention  appears 
from  the  will,  upon  consideration  of  all  of  its  provisions." 

The  same  reasoning  applies  with  special  force  to  the  case  at  bar. 
Let  us  look  at  the  circumstances.  The  testator  had  one  child,  a  bright, 
intelligent,  lovable  son,  three  years  old,  bearing  his  father's  name, 
Creighton,  and  the  testimony  shows  that  the  testator  was  devotedly 
attached  to  this  boy.  The  testator  had  retired  from  business  and  spent 
a  large  part  of  his  time  in  the  company  of  his  son,  Creighton.     He 


Ch.  2)  PERSONS   TAKING    BY    DESCENT.  415 

owned  an  estate  of  heavily  incumbered  and  unproductive  lands,  which 
required  business  ability  and  expedition  in  handling  the  same.  The 
testator  had  a  wife  in  whose  business  judgment  and  ability  he  had 
unlimited  confidence,  and  he  no  doubt  believed  that  her  maternal  de- 
votion to  her  children  could  be  relied  upon  to  provide  for  them  out  of 
what  might  be  saved  of  the  estate  better  than  the  testator  could  in 
the  embarrassed  and  entangled  condition  of  affairs  that  surrounded 
the  property  at  the  time  the  will  was  executed.  Surrounded  by  these 
circumstances,  the  testator  made  his  will,  employing  for  that  purpose 
16  words :  "1  give,  devise  and  bequeath  all  my  property,  wherever  sit- 
uated, to  my  wife,  Jane  Creighton  Peet."  What  did  the  testator  mean 
by  giving  all  his  property  to  his  wife?  Did  he  mean  that  if  after- 
wards a  child  should  be  born  such  child  should  have  one-fourth  of  the 
property  and  the  wife  three-fourths,  and  the  other  child,  Creighton, 
none?  In  our  opinion  he  meant  that  his  wife  should  have  all  of  the 
property,  to  the  exclusion  of  his  children  then  born  or  to  be  thereafter 
born,  and  we  are  much  influenced  in  reaching  this  conclusion  by  the 
circumstances  surrounding  the  testator  at  the  time  the  will  was  made, 
parol  evidence  of  which,  under  the  authority  of  the  Hawhe  Case,  is 
clearly  admissible  in  this  state. 

We  freely  concede  that  other  courts  in  other  jurisdictions  have 
reached  an  opposite  conclusion  with  respect  to  the  admissibility  of 
parol  evidence  under  statutes  bearing  more  or  less  similarity  to  ours. 
Perhaps  one  of  the  strongest  presentations  of  the  opposing  view  is  an 
opinion  of  the  United  States  Circuit  Court  for  the  District  of  Ne- 
braska, rendered  by  Mr.  Justice  Brewer,  in  the  case  of  Chicago,  Bur- 
lington &  Quincy  Railroad  Co.  v.  Wasserman,  22  Fed.  872.  In  that 
case  the  learned  judge  felt  himself  compelled  to  decide  against  what 
he  frankly  confesses  was  the  real  intention  of  the  testator,  because, 
under  his  view,  parol  evidence  could  not  aid  the  difficulty.  A  quota- 
tion from  that  case  is  here  made  merely  for  the  purpose  of  showing 
that  the  rule  there  applied  defeated  the  intention  of  the  testator:  "In 
this  case  the  primary  question  I  am  reluctantly  compelled  to  decide 
in  favor  of  the  complainant,  Wasserman.  I  say  reluctantly,  for  when 
a  man,  on  the  eve  of  death,  having  a  child  five  years  of  age  and  liv- 
ing with  a  wife  to  be  delivered  of  a  second  child  within  twenty  days, 
makes  a  will  giving  all  his  property  to  his  wife,  I  think  the  common 
voice  will  say  that  he  intended  no  wrong  to  either  the  born  or  unborn 
child,  but  trusted  to  his  wife,  their  mother,  to  do  justice  to  each,  and 
believed  that  she,  with  the  property  in  her  hands,  could  handle  it  more 
advantageously  for  herself  and  children  than  if  interests  in  it  were 
distributed.  As  a  question  of  fact,  independent  of  the  statute,  I  have 
no  doubt  that  Mr.  Wasserman  had  no  feeling  either  against  the  born 
or  unborn  child,  but,  having  implicit  faith  in  his  wife,  meant  that  she 
should  take  the  entire  property,  and  believed  that  out  of  that  prop- 
erty and  her  future  labors  she  would  take  care  of  his  children.     But 


416  DESCENT.  (Part  2 

the  legal  difficulty  is  this:  The  statute  says  it  must  be  apparent  from 
the  will  that  the  testator  intended  that  the  unborn  child  should  not  be 
specially  provided  for.  How  can  any  intention  as  to  this  child  be 
gathered  from  the  will  alone?  It  simply  gives  everything  to  the  wife, 
is  silent  as  to  children.  If  I  could  look  beyond  the  will,  my  conclu- 
sion would  be  instant  and  unhesitating."  Whatever  weight  this  au- 
thority might  have  if  this  were  a  case  of  first  impression  with  this 
court,  it  can  have  none  now  in  the  face  of  our  own  decision  in  the  Haw- 
he  Case,  where  the  same  authority  was  pressed  upon  our  attention,  and 
this  court  expressly  refused  to  follow  it.  This  court,  on  page  569  of 
165  111.,  page  242  of  46  N.  E.,  of  the  Hawhe  Case,  speaking  of  the 
Wasserman  Case,  said:  "While  the  facts  in  that  case  are  quite  sim- 
ilar to  the  facts  in  this  case,  and  the  opinion  delivered  by  the  eminent 
jurist  seems  to  sustain  appellant's  view  of  the  law,  we  are  not  inclined 
to  follow  it."  In  the  Wasserman  Case  are  collected  a  number  of  deci- 
sions of  other  courts  upon  which  appellant  relies;  but,  if  the  Wasser- 
man Case  be  rejected  as  not  good  law  in  this  jurisdiction,  it  would 
seem  scarcely  necessary  to  examine  in  detail  the  cases  upon  which  it 
rests. 

The  appellant  relies  with  some  apparent  confidence  upon  Lurie  v. 
Radnitzer,  166  111.  609,  46  N.  E.  1116,  57  Am.  St.  Rep.  157,  as  laying 
down  a  different  rule  from  that  announced  in  the  Hawhe  Case.  We 
do  not  regard  these  cases  as  in  conflict.  Indeed,  the  Hawhe  Case  is 
cited  twice  in  the  Radnitzer  Case  and  relied  on  as  an  authority  in  sup- 
port of  the  conclusion  reached  in  the  latter  case.  The  cases  are  clearly 
distinguishable,  and  there  is  nothing  said  in  the  later  case  that  in  any 
way  impairs  the  authority  of  the  foritier. 

There  is  nothing  in  the  New  York  statute  introduced  in  evidence 
by  appellant,  which,  considered  as  a  fact  in  connection  with  the  other 
surrounding  circumstances,  will  overcome  the  proofs  properly  before 
the  court. 

It  results  from  what  has  been  said  that  appellant's  second  proposi- 
tion cannot  be  sustained.  The  decree  of  the  court  below  is  right,  and 
the  same  is  affirmed. 

Decree  affirmed.* 

Cartwright,  Farmer,  and  Dunn,  JJ.  (dissenting).  The  provision 
of  the  statute  is  that  a  child  born  to  any  testator  after  the  making 
of  a  will  shall  not  be  disinherited  unless  it  shall  appear  by  such  will 
that  it  was  the  intention  of  the  testator  to  disinherit  such  child.  It 
is  not  necessary  that  the  testator  should  expressly  declare  such  inten- 

*  On  thfe  admissibility  of  parol  evidence  to  show  whether  a  living  child  was 
intentionally  omitted  from  the  will,  see  8  Am.  &  Eng.  Ann.  Cas.  637,  note.  That 
a  child  is  not  so  omitted  where  he  is  not  provided  for  because  the  scrivener 
persuades  the  testator  that  the  omission  will  not  cut  off  the  child's  share  of  his 
estate  is  held  in  Bachinski  v.  Bachinskl,  152  Mich.  693,  116  N.  W.  556,  125  Am. 
St.  Rep.  427  (19U8).     See,  also,  note  OS,  ante,  p.  224. 


Ch.  2)  PERSONS   TAKING   BY    DESCENT.  417 

tion,  but  it  is  sufficient  if  the  will  fairly  manifests  it.  In  the  absence 
of  latent  ambiguity,  such  as  the  cases  referred  to  in  the  foregoing- 
opinion,  in  one  of  which  the  testator  had  two  sons  named  John,  and  in 
the  other  made  a  devise  to  "the  four  boys"  when  he  had  seven  sons, 
the  intention  is  to  be  gathered  from  the  will  itself.  Hayward  v.  Loper, 
147  111.  -il,  35  N.  E.  225.  That  rule  was  stated  in  Hawhe  v.  Chicago 
&  Western  Indiana  Railroad  Co.,  1G5  111.  561,  46  N.  E.  240,  as  follows: 
"The  law  is  well  settled  that  extrinsic  evidence  cannot  be  resorted  to 
to  show  the  intention  of  the  testator  where  there  is  no  latent  ambigu- 
ity in  the  will,  but  the  intention  is  to  be  determined  from  the  language 
used  by  the  testator  in  the  will  itself."  Evidence  as  to  the  circum- 
stances surrounding  a  testator  at  the  time  the  will  is  made  is  proper, 
as  an  aid  to  an  intelligent  construction  of  the  language  used,  by  en- 
abling the  court  to  stand  in  the  testator's  place  and  to  read  the  will  in 
the  light  of  those  surrounding  circumstances;  but,  when  that  is^done, 
it  must  appear  by  the  will  that  it  was  the  intention  of  the  testator  to 
disinherit  an  after-born  child,  if  the  will  is  to  have  that  effect. 

The  only  facts  apparent  in  this  case  which  have  any  bearing  upon 
the  question  to  be  determined  are  that  the  testator  had  one  child  three 
years  old,  for  whom  he  had  made  no  provision  in  the  will,  and  that 
he  had  a  wife,  to  whom  he  made  a  simple  devise  of  all  his  property. 
By  the  will  itself  the  testator  manifested  an  intention  to  give  all  his 
property  to  his  wife  and  to  give  nothing  to  the  living  child ;  but  in  our 
opinion,  such  facts  are  entirely  insufficient  to  justify  the  conclusion 
reached  in  said  opinion  that  it  appears  by  the  will  that  it  was  the  in- 
tention of  the  testator  to  disinherit  the  child  born  IV2  years  after  the 
execution  of  the  will.    We  do  not  regard  the  decision  in  the  case  of 
Hawhe  v.  Chicago  &  Western  Indiana  Railroad  Co.,  supra,  either  as 
conclusive  of  the  question  involved  in  this  case,  or  as  fairly  tending 
to  sustain  the  conclusion  reached  here.    In  that  case  the  will  was  made 
on  the  afternoon  preceding  the  death  of  the  testator.     By  it  he  gave 
all  his  estate  to  his  wife.     He  had  two  children  when  the  will  was 
executed,  and  a  posthumous  child  was  born  about  two  months  after 
the  execution  of  the  will  and  his  death.     He  made  no  allusion  what- 
ever to  his  living  children  or  to  the  one  which  was  soon  to  be  born, 
and  in  devising  all  his  property  to  his  wife  he  used  language  which 
the  court  regarded  as  very  significant  of  an  intention  that  no  other 
person  than  his  wife  should,  in  any  event,  have  any  portion  of  his 
estate.    It  was  said  that  the  language  used  meant  more  than  a  simple 
devise;    that  language  could  not  have  been  used  which  would  more 
clearly  express  an  intention  that  the  wife,  and  she  alone,  should  take 
and  hold  the  testator's  estate  to  the  exclusion  of  all  others ;   and  that, 
if  the  testator  had  inserted  a  clause  in  his  will  that  no  other  person 
should  have  any  portion  of  his  estate,  such  a  provision  would  have 
excluded  the  two  children  then  born  and  the  one  thereafter  to  be  born, 
and  yet  such  a  provision  would  not  have  made  the  intention  of  the 
Cost. Wills— 27 


418  DESCENT.  (Part  2 

testator  more  definite  than  the  language  used.  In  this  case  the  gift 
to  the  wife  was  an  ordinary  and  simple  devise,  and  one  of  the  control- 
ling reasons  for  the  decision  in  the  Hawhe  Case  is  entirely  wanting. 

The  only  other  fact  regarded  as  significant  in  determining  the  in- 
tention of  the  testator  was  that  he  had  two  children  living  and  knew 
that  another  child  was  to  be  born  within  the  next  two  months,  and  he 
made  no  mention  of  either.  The  living  children  were  excluded  from 
taking  any  portion  of  the  estate,  and  it  was  not  regarded  as  reason- 
able to  believe  that  the  testator  intended  to  exclude  them  and  not  at 
the  same  time  exclude  the  other  child  soon  to  be  born.  It  is  beyond 
question  that  the  testator  there  had  in  mind  both  his  living  children 
and  the  one  that  would  soon  be  born,  and  must  have  entertained  an  in- 
tention respecting  the  share  which  the  child,  when  born,  would  take 
in  his  estate.  It  was  therefore  a  fair  inference  that  he  had  the  same 
intention  as  to  all.  In  this  case  the  child  was  born  li^  years  after  the 
execution  of  the  will,  and  as  it  had  no  existence  when  the  will  was 
made  the  testator  could  have  had  no  intention  respecting  it,  different 
from  that  which  almost  every  testator  might  have  in  executing  a  will. 
Eliminating  from  the  Hawhe  Case  the  two  facts  above  referred  to, 
and  which  formed  the  basis  of  the  decision,  and  there  would  be  but 
little  left.  We  cannot  conceive  that  the  decision  would  have  been  the 
same  in  the  absence  of  such  facts. 

In  the  later  case  of  Lurie  v.  Radnitzer,  166  111.  609,  46  N.  E.  1116, 
57  Am.  St.  Rep.  157,  the  testator  had  a  wife  and  three  children,  and 
a  posthumous  child  was  born  about  three  months  after  his  death.  In 
his  will  he  devised  his  entire  estate  to  his  wife  and  the  three  living 
children,  giving  two-fifths  to  the  wife  and  one-fifth  to  each  of  the 
three  children.  In  the  draft  of  the  will  he  made  a  devise  to  his  child 
as  yet  unborn,  and  in  another  place  made  reference  to  that  child,  but 
before  the  execution  of  the  will  he  erased  both  the  devise  and  the  ref- 
erence. It  was  held  that,  although  the  testator  gave  his  entire  estate 
to  the  wife  and  living  children  and  erased  the  devise  to  the  unborn 
child,  he  did  not  thereby  manifest  an  intention  to  disinherit  such  child. 
The  decision  was  based  on  the  ground  that  the  will  contained  no  neg- 
ative expressions  whatever  concerning  the  unborn  child,  and  the  court 
said :  "The  mere  fact  that  the  testator  knew  that  such  child  was  likely 
to  be  born  to  him,  and  that  he  had  such  knowledge  when  he  executed 
his  will,  would  not  be  sufficient,  under  the  statute,  to  deprive  such 
child  of  his  share  in  his  father's  estate."  The  statement  made  in  this 
case  that  the  testator,  no  doubt,  believed  that  the  maternal  devotion  of 
his  wife  to  her  children  could  be  relied  upon  to  provide  for  them,  is 
not  in  harmony  with  what  was  there  said  concerning  the  intention 
of  the  testator,  as  follows:  "Had  it  been  his  intention,  as  contended 
by  appellants,  that  the  provision  in  the  will  giving  his  wife  two-fifths 
of  his  estate  should  inure  also  to  the  benefit  of  this  child  if  born  alive, 
we  would  expect  to  find  something  in  the  will  to  indicate  such  in- 
tention." 


Ch.  2)  PERSONS   TAKING   BY    DESCENT. 


419 


We  are  of  the  opinion  that  it  does  not  appear  by  the  will  in  ques- 
tion in  this  case  that  it  was  the  intention  of  the  testator  to  disinherit 
the  child  born  li/o  years  afterward,  which  had  no  existence  at  the 
time  the  will  was  made. 


SECTION  3.— ADOPTED  CHILDREN 


WAGNER  V.  VARNER. 

(Supreme  Court  of  Iowa,  1879.    50  Iowa,  532.) 

Mahala  Boyer,  daughter  of  John  Bumer,  died  in  1864,  leaving  two 
children,  who  are  the  wards  of  the  plaintiff,  surviving  her.  In  the 
same  year — but  whether  before  or  after  the  death  of  said  Mahala 
does  not  appear — John  Bumer  adopted  said  children,  as  provided  by 
law,  and  in  1876  died  without  having  made  a  will.  Said  Bumer  left 
several  other  children  surviving  him.  The  plaintiff  claims  that  his 
wards  are  entitled  to  inherit  a  share  of  the  estate  of  said  Bumer,  as 
his  children  by  adoption,  and  also  the  share  their  mother  would  have 
been  entitled  to  had  she  outlived  him.  The  circuit  court  held  that  said 
children  could  only  inherit  by  reason  of  their  adoption,  and  rejected 
the  other  claim.     The  plaintiff  appeals. 

Seevers,  J.  It  is  provided  by  statute  that  the  "consent  of  both  par- 
ents, if  living,  and  not  divorced  or  separated,  and  if  divorced  or  sep- 
arated, or  if  unmarried,  the  consent  of  the  parent  lawfully  having  the 
care  and  providing  for  the  wants  of  the  child ;  or  if  either  parent  is 
dead  then  the  consent  of  the  survivor;  or  if  both  parents  be  dead,  or 
the  child  shall  have  been  and  remains  abandoned  by  them,"  the  con- 
sent of  certain  named  officers  is  necessary  before  the  child  can  be  le- 
gally adopted.    Code,  §  2308. 

When  thus  adopted  "the  rights,  duties  and  relations  between  the 
parent  and  child  by  adoption  shall,  thereafter,  in  all  respects,  includ- 
ing the  right  of  inheritance,  be  the  same  that  exist  by  law  between 
parent  and  child  by  lawful  birth."    Code,  §  2310. 

In  the  absence  of  a  will  the  estate  descends  in  equal  shares  to  the 
children  of  the  deceased.  Code,  §  2453.  If  one  of  the  children  of 
the  deceased  "be  dead,  the  heirs  of  such  child  shall  inherit  his  share 
*  *  *  in  the  same  manner  as  though  such  child  had  outlived  his 
parents."     Code,  §  2454. 

Under  section  2310  the  wards  of  the  plaintiff  inherit  as  the  children 
by  adoption  of  John  Bumer,  and  if  Mahala  Boyer  had  outlived  him 
she  would  have  inherited  as  the  natural  child  of  said  Bumer,  under 
section  2453;  and  section  2454  expressly  provides  that  her  children 
shall  inherit  in  the  same  manner  as  though  she  had  outlived  her  father. 


^20  DESCENT.  (Part  2 

There  is  no  escape  from  this  conclusion  unless  it  can  be  said  that 
the  child  by  the  adoption  is  disinherited  by  its  natural  parent. 

Because  of  the  adoption  the  child  acquired  certain  additional  rights, 
but  there  is  nothing  in  the  act  of  adoption  which  in  and  of  itself  takes 
away  other  existing  rights,  or  such  as  may  subsequently  accrue,  ex- 
cept as  is  by  statute  provided. 

The  argument  that  these  children  cannot  inherit  through  their 
mother  leads  to  this  result.  Suppose  their  father  after  her  death  con- 
sented to  their  adoption,  they  could  not  inherit  through  their  mother 
or  from  their  father,  or  through  him  from  a  remote  ancestor. 

By  the  act  of  adoption  these  children  became  in  a  legal  sense  the 
children  of  John  Bumer.  Nevertheless  they  are  the  children  of  their 
natural  parents,  and  the  act  of  adoption  does  not  deprive  them  of  the 
statutory  right  of  inheriting  from  their  natural  parents,  unless  there 
is  a  statute  which  in  terms  so  provides.  Not  only  is  there  no  such  stat- 
ute, but  we  think  the  contrary  is  expresslv  provided. 

If,  therefore,  a  child  is  adopted  by  a  stranger  it  will  inherit  from 
its  natural  parents,  in  the  absence  of  a  will,  because  section  3453  of 
the  Code  in  express  terms  so  provides. 

So  far  we  have  gone  on  the  supposition  that  the  parents  have  con- 
sented to  the  adoption.  But,  as  we  have  seen,  such  consent  in  certain 
contingencies  may  be  given  by  other  persons.  Can  it  be  that  in  such 
case  the  child  is  disinherited  by  the  natural  parent  without  the  con- 
sent of  the  latter,  in  view  of  the  foregoing  statutory  provisions? 

It  is  said  that  a  child  has  no  natural  right  to  the  estate  of  a  deceased 
parent.  Such  thought,  however,  has  but  little  significance  in  this  con- 
nection, for  the  reason  that  the  statutory  right  is  perfect  and  ample. 
Nor  is  the  argument  that  these  two  children  inherit  from  two  sources, 
and  thus  get  more  than  their  proper  share,  entitled  to  much  weight. 
The  reply  would  seem  to  be  pertinent  here  that  heirship  is  not  a  nat- 
ural but  a  statutory  right,  arbitrary  and  general,  and,  therefore,  ex- 
ceptional cases  of  apparent  hardship  or  inequality  must  occasionally 
occur. 

When  these  children  were  adopted  by  John  Bumer  the  effect  was 
to  increase,  in  a  legal  sense,  the  number  of  his  children  and  heirs, 
and  if  he  died  without  a  will  the  shares  of  his  natural  children  were 
thereby  decreased.  This  was  the  only  effect  of  the  act  so  far  as  the 
right  of  inheritance  was  concerned.  The  rights  of  his  natural  chil- 
dren, including  Mahala  Boyer,  in  all  other  respects  remained  just  as 
they  were  before.  The  result  is  that  the  judgment  of  the  circuit  court 
must  be  reversed.' 

8  But,  contra,  that  an  adopted  child  cannot  Inherit  from  the  same  person  In 
two  capacities,  see  Delano  v.  Bruerton,  148  Mass.  619,  20  N.  E.  308,  2  L.  R.  A. 
fi98  (TSSD) ;  Morgan  v.  Reel.  21.3  Pa.  81.  62  .Vtl.  2-53  (1905).  A  child  mav  inherit 
from  both  Its  adoptive  and  Its  natural  parents.  Humphries  v.  Davis,  100  Ind. 
2r74,  50  Am.  Rep.  788  (1885) ;  Clarkson  v.  Hatton,  143  Mo.  47,  44  S.  W.  761,  39 


Ch.2) 


PERSONS  TAKING   BY   DESCENT.  ^21 


Appeal   of  WOODWARD. 

(Supreme  Court  of  Errors  of  Connecticut,  1908.     81  Conn.  152,  70  Atl.  453.) 

John  O.  Noxon,  a  resident  of  Connecticut,  died  intestate  November 
28  1905.  His  widow  petitioned  for  administration,  settmg  up  that 
she  was  the  widow,  and  that  the  only  heir  at  law  and  next  of  kin  of 
the  deceased  was  his  sister,  Mary  L.  Woodward.  Admmistration  was 
had  and  the  court  of  probate  distributed  the  estate  to  the  widow  and 
one' Elizabeth  E.  B.  Potter  who  had  been  adopted  when  two  years  and 
seven  months  of  age  by  the  intestate  and  his  wife  in  Wisconsm.  The 
sister  of  the  intestate  appealed  from  the  orders  of  distribution. 

T    T?    A    74S   fi^  Am   St   Ren    635  (1898).    And  from  several  sets  of  adoptive 
par^ntt-    Patterson  v.  BrowB'^lng^46  Ind.  160,  44  N.  E.  993  (1S96).    And  take« 
as  nieteri£?ted  heir.    Van  Brocklin  v.  Wood,  38  Wash.  384,  80  Pac  530  (1905). 
^d  even    it  seems,  as  an  afterborn  pretermitted  heir   where     he  adoption 
comes  after  the  making  of  the  will.    Flannigan  v.  Howard   200  111.  396  6o  J. 
E   782    59  L    R.  A.  664.  93  Am.  St.  Rep.  201   (1902);  Sandon  v.  Sandon    123 
Wis  603,  101  N.  W.  1089  (1905).    The  adopted  child  does  not  as  a  rule  kiherit 
J^om  the  ancestral  or  collateral  kindred  erf  ^t^f^optive  parent      Ph^^^^^^^  v. 
ATpPnnipq    'lO  Ohio  St    1    51  N.  E.  445,  69  Am.  St.  Rep.  753  (lb9S) ,  Meaaei  v. 
Archer   65  N    H2ll  23  M^    521  (1889);  Van  Derlyn  v.  Mack,  137  Mich^  147, 
Too  NW   278,  66  L.  R.  A.  437,  109  Am.  St.  Rep.^669  (1904)  ;Hockadayv   Lynn 
200  Mo.  45G,  98  S.  W.  585,  8  L.  R.  A.  (N.  S.)  117   118  Am^  St.  Rep.  6,2  (190G)  , 
Burnett's  Estate,  219  Pa.  59d,  69  Atl.  74  (1908) ;  Boaz  v^rfwmney,  <9  I-^^-  33- 
99  Pac.  621  (1909).     See  17  L.  R.  A.  435,  note;  8  L.  R.  A    (N    S.)  11<,  note 
But  in  Iowa  he  may  inherit  through  the  adoptive  parent.     Shick  v.  Howe,  137 
fowa   249    114  N.  W.  916,  14  L.  R.  A.  (N.  S.)  980  (1908).     In  aiassachusetts  the 
adopted  child  may  inherit  from  the  children  of  the  adoptive  parents     Stearns 
V  AlleS,  183  Mass.  404,  67  N.  E.  349,  97  Am.  St.  Rep.  441  (1903  .  ^  But  the  gen- 
eral  rule  seems  to  be  the  other  way.    Keegan  v.  Geraghty,  101  111.  26  (ISSl) . 
Helms  V   Elliott,  89  Tenn.  44B,  14  S.  W.  930  10  K  R.  A   535  (1890)      See^also 
118  Am   St.  Rep.  684,  note.     In  Carroll's  Estate,  219  Pa.  440,  68  Atl.  1038   123 
Am  St  Rep.  673  (1908),  a  husband  adopted  a  child  by  proceedings  to  which  his 
wSe  was  not  a  party  and  the  child  so  adopted  was  held  not  to  inherit  from 

As  to  whether  the  blood  relatives  of  an  adopted  child  or  its  adoptive  parents 
inherit  from  it,  the  statutes  of  the  given  state  must  be  consulted.  In  the  ab- 
sence of  an  express  statute  giving  the  adoptive  parents  the  right  to  inherit, 
it  i«!  held  in  White  v.  Dotter.  73  Ark.  180  (1904).  Upson  v.  Noble.  35  Ohio  St. 
65.5^(1880).  and  Hole  v.  Robhins,  53  Wis.  514.  10  N.  W.  617  (1881).  that  the  blood 
relatives  take.  In  Humphries  v.  Davis,  100  Ind.  274,  50  Am.  Rep.  788  (18So), 
an  adopted  child  died  intestate  without  issue,  owning  real  estate  which  came 
to  it  by  inheritance  from  the  adoptive  mother,  and  the  court  held  that  siich 
real  estate  descended  to  the  surviving  adoptive  father  rather  than  to  the 
child's  surviving  natural  mother.  Compare  Swick  v.  Coleman,  218  111-33,  (5 
N  E  807  (1905),  where  there  was  a  statute  covering  the  matter.  But  see 
Reinders  v.  Koppelmann,  68  Mo.  482,  30  Am.  Rep.  802  (1878).  It  has  been 
held  that  the  children  of  the  adopted  child  will  inherit  through  him  the 
share  of  the  estate  of  a  deceased  adoptive  parent  as  fully  as  if  the  adopted 
?Mld  were  a  child  by  blood.  Pace  v.  Klink,  51  G^.  220  (1874) ;  Power  v.  Hafley 
85  Ky  671,  4  S.  W.  683  (1887) ;  Gray  v.  Holmes,  57  Kan.  217,  45  Pac.  596,  33 
T  v  \  '>07  (1896)  On  whether  adonted  children  are  included  m  bequests  to 
chiMrem^se;  Bray  v.  Miles.  23  Ind.  App.  432,  54  N.  E.  446,  55  N.E  510  (1899) ; 
Woodcock's  Appeal,  103  Me.  214,  68  Atl.  821,  125  Am.  St.  Rep.  291  (1907) ,  In 
re  Haight,  63  Misc.  Rep.  624.  118  N.  Y.  Supp.  745  (1909).  On  adoption  in  gen- 
eral, see  9  Prob.  Rep.  Ann.  345,  note. 


422  DESCENT.  (Part  2 

HammErslEy,  J.'  *  *  *  The  meaning  and  effect  of  the  stat- 
utory adoption  and  decree  is  defined  by  the  [Wisconsin]  statute  as 
follows :  ( 1)  As  affecting  the  legal  rights  and  duties  of  parent  and 
child,  the  adopted  child  shall  be  deemed,  for  the  purposes  of  custody 
of  his  person,  of  power  to  enforce  obedience,  and  other  legal  conse- 
quences attached  to  the  natural  relation  of  parent  and  child,  as  a  child 
of  the  adopting  parent  bom  in  lawful  wedlock;  the  natural  parent  of 
the  child  being,  by  such  decree,  deprived  of  all  legal  rights  as  respects 
such  child  and  the  child  iDeing  freed  from  all  legal  obligations  as  re- 
spects his  natural  parent.  (2)  As  affecting  the  laws  of  inheritance 
and  distribution  and  the  capacity  of  the  child  to  take  property  in  pur- 
suance of  such  laws,  the  adopted  child  shall  be  deemed  and  taken,  for 
the  purposes  of  inheritance  and  succession  by  him,  to  be  the  child  of 
his  adopting  parent.    *     *    * 

There  is  nothing  in  the  policy  of  this  state,  in  reference  to  the  rela- 
tion of  parent  and  child,  which  could  interfere  with  our  giving  effect 
to  the  Wisconsin  decree,  as  respects  the  rights  of  the  petitioners  for 
the  adoption,  after  they  transferred  their  domicile  to  Connecticut,  or 
of  those  claiming  under  them.  We  have  statutes  of  a  similar  nature, 
and  fully  recognize  the  status  of  an  adopted  child.  Ross  v.  Ross,  129 
Mass.  243,  267,  37  Am.  Rep.  321.  Those  who  have  once  legally  made 
such  an  adoption  cannot  shake  off  the  relation  by  a  change  of  domicile. 
Whether  the  child  adopted,  on  reaching  full  age,  could  reclaim  its 
original  domicile  is  a  question  not  raised  by  the  facts  before  us.  To 
John  O.  Noxon,  therefore,  after  his  removal  to  this  state,  as  well  as 
while  an  inhabitant  of  Wisconsin,  Elizabeth  E.  Burton,  now  Mrs.  Pot- 
ter, stood  in  the  position  of  a  child  born  in  lawful  wedlock.    *    *    * 

There  is  no  error.    In  this  opinion  the  other  Judges  concurred.'' 

«  The  statement  of  facts  Is  abbreviated,  and  part  only  of  the  opinion  is 
given. 

7  See  Pinlev  v.  Brown  (Tenn.)  123  S.  W.  359  (1009).  But  see  Brown  v.  Fin- 
ley,  Io7  Ala.  424,  47  South.  577,  21  L.  R.  A.  (N.  S.)  G79  (1908).  Compare  Kee- 
gan  V.  Geraschty,  101  111.  26  (1881),  where  a  child  adopted  in  Wisconsin  was 
not  allowed  to  inherit  in  Illinois  from  a  child  of  the  adoptive  parent,  because 
a  child  adopted  in  Illinois  could  not  have  done  so.  CJompare,  also,  Olmsted 
V.  Olmsted,  216  U.  S.  386,  30  Sup.  Ct.  292,  54  L.  Ed.  (1910).  On  the  ex- 
traterritorial effect  of  adoption,  see  65  L..  R.  A.  186,  note,  and  21  L.  R.  A. 
(N.  S.)  679,  note. 


Ch.  2)  PERSONS   TAKING   BY   DESCENT.  i23 


SECTION   4.— ILLEGITIMATE   AND   LEGITIMATED   CHIL- 
DREN 


THOMAS  V.  THOMAS'  ESTATE. 

(Supreme  Court  of  Nebraska,  1902.     64  Neb.  581,  90  N.  W.  630.) 

Hastings,  C*  The  dispute  in  this  case  relates  to  the  construction 
of  section  31,  c.  23,  Comp.  St.  1901.  The  specific  question  seems  to 
be  whether  the  acknowledgment  in  writing,  signed  in  the  presence  of 
a  competent  witness,  required  of  the  father  of  an  illegitimate  child  in 
order  to  constitute  the  latter  an  heir,  is  simply  a  provision  for  writ- 
ten evidence  of  paternity,  or  whether  it  is  a  requirement  of  a  writ- 
ten instrument  signifying  an  intention  of  the  father  to  change  the 
status  of  the  child.  Plaintiff's  petition  filed  in  the  county  court  of 
Douglas  county  in  Re  Estate  of  John  D.  Thomas,  deceased,  alleges 
that  he  is  the  illegitimate  child  of  John  D.  Thomas;  that  the  latter, 
about  April  8,  1876,  in  writing,  signed  in  the  presence  of  competent 
witnesses,  acknowledged  himself  to  be  plaintiff's  father.  He  asked 
to  be  adjudged  and  considered  an  heir  of  the  estate  of  John  D.  Thom- 
as. The  probate  court  decided  against  him.  He  appealed  to  the  dis- 
trict court  of  Douglas  county  with  the  same  result,  and  brings  a  peti- 
tion in  error  to  reverse  the  latter  judgment.  *  *  * 
.  If  this  statute  is  to  be  taken  as  merely  requiring  a  particular  form 
of  evidence  of  paternity  in  order  to  render  any  illegitimate  child  com- 
petent to  inherit  and  only  one  that  shall  comply  with  the  bare  terms 
of  the  law,  then  the  dismissal  was  erroneous.  There  was  certainly 
competent  evidence  of  such  a  writing  having  been  in  existence.  It 
is  true  that,  as  tendered  in  proof,  this  agreement  was  a  mere  incident 
to  the  settlement  with  the  mother.  There  is,  however,  proof  given 
and  tendered  that  there  was  a  writing,  signed  by  John  D.  Thomas  in 
the  presence  of  witnesses  competent  to  testify,  in  which  he  acknowl- 
edged himself  to  be  the  father  of  claimant.  It'  is  earnestly  contended 
on  the  latter's  behalf  that  this  is  all  that  is  required. 

In  this  view  counsel  are  strongly  supported  by  the  case  of  Blythe  v. 
Ayres,  96  Cal.  532,  31  Pac.  915,  19  L.  R.  A.  40.  That  court  is  ex- 
pressly construing  this  same  statute,  and  holds  that  oiographic  letters 
of  the  decedent,  whose  signing  was  seen  by  competent  witnesses,  were 
a  sufficient  compliance  with  the  requirements  of  the  law.  This  con- 
clusion, so  far  as  it  rests  on  the  ground  that  this  statute  was  intended 
to  permit  any  child  born  out  of  wedlock  to  inherit  from  his  father  if 
he  could  prove  his  parentage  in  this  way,  was  without  dissent.    *    *    * 

»  Part  only  of  the  opinion  is  given. 


424  DESCENT.  (Part  2 

If  this  statute  is  to  be  construed  as  simply  providing  for  special 
evidence  of  paternity,  the  fact  that  the  writing  was  never  delivered 
would  seem  to  be  without  importance.  Neither  had  the  will  ever  been 
delivered  in  Remy  v.  Municipality  No.  3,  11  La.  Ann.  159.  It  would 
not  matter  who  had  it  if  it  was  simply  evidence  of  paternity.  If,  how- 
ever, an  intention  to  change  the  status  of  the  child  is  required  on  the 
father's  part,  if  the  writing  was  in  the  nature  of  a  grant  of  inheriting 
capacity,  and  to  be  effective  must  evince  an  intention  of  the  deceased 
to  make  the  claimant  one  of  his  heirs,  then  his  retention  of  it  would 
show  that  such  intention  was  imperfect,  and  that  he  desired  still  to 
retain  his  control  of  the  matter.  The  nondelivery  of  a  memorandum 
sufficient  to  satisfy  the  statute  of  frauds  is  held  to  vitiate  it,  for  the 
reason  that  it  shows  an  imperfect  execution,  and  to  pass  rights  there 
must  be  such  a  delivery  as  places  the  instrument  beyond  the  control 
of  the  maker.  Wier  v.  Batdorf,  24  Neb.  S3,  38  N.  W.  22.  If,  as  de- 
fendants in  error  claim,  an  instrument  for  the  express  purpose  of  ac- 
knowledging the  claimant  was  necessary,  he  has  no  right.     *     *     * 

In  Nebraska  the  first  territorial  Legislature  adopted  the  Iowa  stat- 
ute that  an  illegitimate  child  should  inherit  from  one  who  should  ac- 
knowledge him  as  a  child,  but  such  recognition  must  have  been  general 
and  notorious,  or  else  in  writing.  Laws  1855,  p.  75.  In  1856  another 
statute  was  passed  allowing  illegitimate  children  to  inherit  only  on  the 
intermarriage  of  the  parents  and  the  father's  acknowledgment  of  par- 
entage. Laws  1856,  p.  125.  In  1860  the  present  law  was  enacted. 
Laws  1861,  p.  64.  As  shown  in  the  California  cases,  the  question  here 
is  one  of  construction.  It  would  seem  that  the  common  law  on  this 
subject  is  pretty  thoroughly  eliminated  in  Nebraska.  There  are  some 
few  cases  in  this  country  which  adopt  the  rule  that  in  passing  upon 
the  rights  of  illegitimate  children  to  inherit  a  strict  construction  must 
be  followed,  as  all  such  rights  are  statutory.  At  common  law  the  ille- 
gitimate, like  the  alien,  had  no  heritable  blood.*     The  construction  as 

»  "By  the  law  [the  common  law]  a  bastard  was  nullius  filins  as  to  the  whole 
question  of  inheritance.  He  had  no  mother,  or  father,  no  brothers,  sisters,  or 
other  kindred— no  inheritable  blood,  and  hence  no  capacity  to  inherit  or  trans- 
mit inheritance,  save  to  the  heirs  of  his  own  body.  The  supposed  origin  of 
this  rule  has  been  asserted  to  be  the  discouragement  of  a  promiscuous  and 
illicit  intercourse  between  the  sexes.  It  is  at  least  debatable  whether  pre- 
cisely the  opposite  policy,  conferrini?  equal  rights  of  inheritance  upon  legiti- 
mate and  illegitimate  offspring,  would  not  better  preserve  the  high  moral  duty 
of  chastity  between  the  sexes."  Somerville,  J.,  in  Butler  v.  Elyton  Land  Co., 
84  Ala.  384,  390,  4«  South.  G75,  G77  (1887). 

The  statutes  of  most  states  allow  a  bastard  to  inherit  from  his  mother,  and 
allow  bastards  born  of  the  same  mother  to  inherit  from  each  other.  Because 
the  statutes  varv  in  wording  and  the  courts  vary  in  strict  or  liberal  con- 
struction, it  is  hard  to  lay  down  rules.  In  the  absence  of  an  express  provi- 
sion in  the  statute  permitting  it,  such  statutes  have  usually  been  construed 
not  to  allow  the  bastard  to  inherit  from  his  mother's  ancestors:  Jackson  v. 
Jackson,  78  Ky.  390,  39  Am.  Rep.  246  (1880) ;  Waggoner  v.  Miller,  26  N.  G. 
4R0  a844) ;  Brown  v.  Kerby,  9  Humph.  (Tenn.)  460  (1848).  But  see  McGuire 
v.  Drown,  41  Iowa,  650  (1875).  And  compare  Jackson  v.  Hocke,  171  Ind.  371, 
84  N.  E.  830  (1908).     Or  from  his  mother's  collateral  kindred.     Pratt  v.  At- 


Ch.  2)  PERSONS   TAKING   BY    DESCENT.  4:26 

to  the  alien  is  that,  unless  he  is  .expressly  mentioned,  he  has  no  part 
in  statutes  of  descent.  Stemple  v.  Herminghouser,  3  G.  Greene  (Iowa) 
408;  Crane  v.  Reeder,  21  Mich.  24,  4  Am.  Rep.  430;  Orr  v.  Hodg- 
son, 4  Wheat.  453,  4  L.  Ed.  613. 

The  rights  of  illegitimate  children  have  sometimes  been  treated  in 
the  same  way.  Pina  v.  Peck,  31  Cal.  359 ;  Furguson  v.  Jones,  17  Or. 
204,  20  Pac.  842,  3  L.  R.  A.  620,  11  Am.  St.  Rep.  808.  In  Hunt  v. 
Hunt,  37  Me.  333,  in  construing  this  same  statute,  the  court  says: 
"Who  are  entitled  to  inherit  as  heirs  of  a  deceased  person  is  in  this 
state  to  be  determined  only  by  the  provisions  of  the  statute  in  force 
at  the  time  of  his  decease.  No  rules  of  the  civil  or  common  law  af- 
ford them  the  least  aid."  Generally,  the  courts  hold  that  statutes  for 
the  relief  of  illegitimate  children  should  have  at  least  a  fair  construc- 
tion. In  re  Jessup,  81  Cal.  408,  21  Pac.  976,  22  Pac.  742,  1028,  6  L. 
R.  A.  594;  Blythe  v.  Ayres,  96  Cal.  532,  31  Pac.  915,  19  L.  R.  A. 
40;  Dickinson's  Appeal,  42  Conn.  491,  19  Am.  Rep.  553;  Swanson 
V.  Swanson,  32  Tenn.  446.  Even  the  alien,  when  expressly  mentioned, 
is  given  whatever  the  statute  clearly  calls  for.  It  is  to  be  noted  that 
the  statute  merely  calls  in  this  instance  for  an  "acknowledgment"  of 
a  fact.  It  makes  the  illegitimate  child  "an  heir  of  the  person  who 
shall,  in  writing  signed  in  the  presence  of  a  competent  witness,  have 
acknowledged  himself  to  be  the  father  of  such  child." 

If  no  more  is  asked  of  this  son  than  the  statute  by  its  terms  re- 
quires, he  is  entitled  to  a  share  of  his  father's  estate  if  the  evidence 
given  and  offered  on  his  behalf  is  true.  Whether  or  not  it  is  true, 
he  is  entitled  to  have  a  jury  decide  if  this  statement  of  his  father's  is 
required  merely  as  evidence  of  his  paternity.  Such  we  conclude  it  is. 
The  question  which  was  not  decided  in  Lind  v.  Burke,  56  Neb.  785, 
77  N.  W.  444,  it  seems  to  us  should  be  decided  in  the  negative.  No 
intention  or  desire  that  the  child  should  become  an  heir  seems  needed 
if  his  father  is  pointed  out  by  an  acknowledgment  of  the  paternity  in 

wood.  108  Mass.  40  (1871) ;  Turnmire  v.  Mayes  (Tenn.)  114  S.  W.  478  (1908)  : 
Reynolds  v.  Hitchcock,  72  N.  H.  340,  56  Atl.  745  (190.3).  But  see  Moore  v. 
Moore,  169  Mo.  432,  69  S.  W.  278,  58  L.  R.  A.  451  (1902).  Or  from  his  legiti- 
mate half  brothers  or  sisters.  Bacon  v.  McBrlde,  32  Vt.  585  (1860);  Wood- 
ward V.  Duncan,  1  Cold.  (Tenn.)  502  (1860) ;  Overton  v  Overton,  123  Ky.  311, 
96  S.  W.  469  (1906) ;  Truelove  v.  Truelove,  43  Ind.  App.  734,  86  N.  E.  1018 
(1909).  But  see  Messer  v.  Jones,  88  Me.  349,  34  Atl.  177  (1896).  where  the 
children  of  an  illegitimate  child  took  by  right  of  representation  their  father's 
share  of  his  legitimate  half  sister's  estate.  That  an  illegitimate  child  takes 
under  a  gift  in  a  will  to  the  "heirs  by  blood"  of  the  mother  is  held  in  Hayden 
V.  Barrett,  172  Mass.  472,  52  N.  E.  530,  70  Am.  St.  Rep.  295  (1899).  On  illegiti- 
mate child  taking  as  a  child  under  a  will,  see  In  re  Eve,  [1909]  1  Ch.  796;  In 
re  Sander's  Estate,  126  Wis.  660,  105  N.  W.  1064  (1906).  On  conflict  of  laws 
as  to  legitimacy,  see  65  L.  R.  A.  177,  note.  Finley  v.  Brown  (Tenn.)  123  S.  W. 
359  (1909)  and  C>luisted  v.  Olmsted,  216  U.  S.  386,  30  Sup.  Ct.  292.  54  L.  Ed. 

(1910).     On  inheritance  by.  through,  or  from  bastards,  see  McSurley  v. 

Venters,  104  S.  W.  365,  31  Ky.  Law  Rep.  963  (1907) ;  Berry  v.  Powell,  47  Tex. 
Civ.  App.  599,  105  S.  W.  345  (1907) ;  In  re  De  Cigaran's  Estate,  150  Cal.  682, 
89  Pac.  833  (1907) ;  23  L.  R.  A.  753,  note ;  56  Am.  Dec.  263-266,  note ;  13  Prob. 
Rep.  Ann.  375. 


426  DESCENT.  (Part  2 

the  latter's  own  hand,  signed  in  the -presence  of  a  competent  witness. 
Neither  does  it  seem  that  the  court  should  add  to  this  statute  any  re- 
quirement of  delivery  of  this  evidence,  or  that  it  be  expressly  men- 
tioned that  the  child  is  illegitimate,  or  that  the  witness  attest  the  writ- 
ing. The  statute  might  require  all  this,  but  by  its  terms  does 
not.    *    *     * 

It  is  therefore  recommended  that  the  judgment  of  the  district  court 
be  reversed,  and  the  cause  remanded  for  further  proceedings. 

Per  Curiam.  For  the  reasons  stated  in  the  foregoing  opinion,  the 
judgment  of  the  district  court  is  reversed,  and  the  cause  remanded  for 
further  proceedings.^* 


SECTION  5.— THE  MURDEKER  OF  THE  ANCESTOR 


WELLNER  et  al.  v.  ECKSTEIN  et  al. 

(Supreme  Court  of  Minnesota,  1908.    105  Minn.  444,  117  N.  W.  830.) 

Lewis,  J.^^  On  January  6,  1899,  and  for  some  years  prior  thereto, 
John  Wellner  ahd  Emelie  Wellner  were  husband  and  wife  and  resi- 
dents of  the  county  of  Nicollet.  On  the  day  named  he  died  intestate, 
the  owner  of  a  farm,  of  which  80  acres  was  their  homestead,  leaving 
him  surviving  his  widow,  Emelie  Wellner,  and  two  minor  children, 
the  plaintiffs  herein.  Thereafter  such  proceedings  were  duly  had  and 
taken  in  the  probate  court  of  the  county  of  Nicollet  that  a  final  decree 
was  duly  made  and  entered  by  and  in  such  court  on  November  11, 
1899,  whereby  the  homestead  was  duly  assigned  to  the  widow  for  her 
life,  with  an  undivided  one-third  of  the  remainder  of  the  real  estate 
in  fee,  and  the  balance  thereof  to  the  two  children.     The  deceased 

10  But  in  Nebraska  acknowledgment  must  be  direct,  unequivocal,  and  un- 
questionable.   J^Ioore  V.  Flack,  77  Neb.  52,  108  N.  W.  143  (1906) 

"While  no  formal  acts  are  prescribed  by  the  statute  which  shall  constitute 
the  acknowledgment  [of  the  child  as  the  father's  offspring]  required,  un- 
doubtedly the  recognition  of  parentage  must  be  unambiguous.  But,  if  so, 
such  recognition  may  be  shown  by  conduct,  as  well  as  by  declarations."  Bra- 
lev  J  in  Houghton  v.  Dickinson,  19G  Mass.  389,  391,  82  N.  E.  481  (1907).  See. 
also  Miller  v.  Pennington,  218  111.  220,  75  N.  E.  919,  1  L.  R.  A.  (N.  S.)  773 
(1905)  holding  that  an  oral  acknowledgment  is  enough  where  the  statute  does 
not  require  a  writing.  Jn  some  states,  the  consent  of  the  wife  is  required  to 
make  the  acknowledgment  effective,  and  it  has  been  held  that  to  give  such 
consent  she  must  first  know  that  the  child  is  her  husband's  illegitimate  off- 
spring Estate  of  Heaton,  135  Oal.  385,  67  Pac.  321  (1902).  It  has  been  held 
that  a  child  once  acknowledged  cannot  be  disowned,  because  a  legal  relation- 
ship, and  not  a  blood  one,  is  to  be  established.  Binns  v.  Dazey,  147  Ind.  .536, 
44  N  E.  046  (1896),  In  Allison  v.  Bryan,  21  Okl.  557,  97  Pac.  282  (1908),  a 
father  was  awarded  the  custody  of  his  illegitimate  minor  child  against  its 
mother,  where  under  the  statute  he  had  legitimatized  it 

11  A  few  slight  omissions  are  made  in  each  opinion. 


Ch.  2)  PERSONS    TAKING   BY    DESCENT.  '427 

was  murdered  by  his  wife  and  hired  man  that  they  might  marry  each 
other  and  enjoy  his  property,  and  they  were  married  on  June  26,  1900, 
and  on  July  5,  1902,  they  executed  for  a  valuable  consideration  a  quit- 
claim deed  of  the  land,  so  decreed  to  Emelie  Wellner  by  the  probate 
court,  to  the  defendant  Joseph  A.  Eckstein,  who  then  had  full  notice 
and  knowledge  of  the  facts  herein  stated.  Thereafter  eaclf  of  the 
grantors  in  the  quitclaim  deed  were  duly  convicted  of  the  crime  of 
murdering  John  Wellner,  and  sentenced  to  life  imprisonment.  On 
April  6,  1907,  the  minor  children,  by  their  guardian,  brought  this  ac- 
tion in  the  district  court  of  the  county  of  Nicollet,  alleging  in  their 
complaint  the  foregoing  facts,  to  secure  a  decree  adjudging  that  the 
defendants  hold  the  legal  title  to  such  interest  in  the  lands  as  was  de- 
creed by  the  probate  court  to  Emelie  Wellner  as  trustee  ex  maleficio 
for  the  benefit  of  the  plaintiffs,  and  that  they  are  the  owners  thereof. 
The  defendants  demurred  to  the  complaint,  and  the  trial  court  made 
its  order,  from  which  the  plaintiffs  appealed,  sustaining  the  demurrer 
on  the  ground  that  the  facts  stated  in  the  complaint  were  not  sufficient 
to  constitute  a  cause  of  action.    *    *    * 

Two  principal  questions  are  presented  by  the  appeal:  (1)  What  is 
the  proper  construction  of  the  state  statutes  with  reference  to  the 
descent  and  distribution  of  the  real  property  of  an  intestate,  the  sur- 
viving widow  having  murdered  her  husband  for  the  purpose  of  ac- 
quiring the  property?  (2)  The  probate  court  having  exercised  its 
jurisdiction  in  administering  the  estate,  and  having  made  its  final  de- 
cree assigning  the  property  to  the  widow  and  children,  has  the  dis- 
trict court  jurisdiction  as  a  court  of  equity  to  set  aside  or  modify  the 
.  judgment  of  the  probate  court,  whether  tlie  statute  be  strictly  con- 
strued or  be  read  with  the  implied  exception  that  it  has  no  applica- 
tion to  one  who  has  murdered  the  ancestor  for  the  purpose  of  ben- 
efiting thereby  ?    *    *    * 

A  majority  of  the  court  are  of  the  opinion  that  the  entire  matter 
is  within  the  jurisdiction  of  the  probate  court,  and  the  order  appealed 
from  is  affirmed  upon  that  ground. 

Start,  C.  J.  I  concur  in  the  conclusion  that  the  order  appealed 
from  must  be  affirmed  solely  for  the  reasons  following : 

The  precise  question  presented  by  the  record  is :  Did  any  beneficial 
interest  in  the  land  of  her  deceased  husband  ever  vest  in  Emelie  Well- 
ner, by  reason  of  the  fact  that  she  was  his  wife  and  that  he  died  in- 
testate, having  been  feloniously  murdered  by  her,  leaving  her  his  sur- 
viving'widow?  A  determination  of  the  question  involves  a  construc- 
tion of  the  statutes  of  the  state  relating  to  the  descent  and  distribu- 
tion of  the  property  of  intestates,  the  effect  of  the  final  decree  of  the 
probate  court  assigning  to  the  widow  the  use  of  the  homestead  and 
one-third  of  the  balance  of  the  land  of  which  her  husband  died  seised, 
and  the  claim  that  in  any  event  she  took  no  beneficial  interest  in  the 
land,  but  held  the  legal  title  as  trustee  ex  maleficio  for  the  plaintiffs. 


428  DESCENT.  (Part  2 

1,  The  descent  and  distribution  of  the  property  of  a  decedent  is  a 
matter  within  the  exclusive  control  of  the  Legislature,  which  may  give 
or  withhold  the  right  to  inherit  upon  such  conditions  as  it  deems  just, 
and  if  the  legislative  intention  as  to  such  matter  is  expressed  in  clear 
and  unambiguous  language  there  is  no  room  for  construction,  and 
effect  must  be  given  to  the  statute  as  it  reads.  The  provisions  of  our 
statute  relating  to  descent  and  distribution,  so  far  as  here  relevant, 
are,  and  were  at  the  time  of  Wellner's  death,  substantially  as  follows : 
Whenever  any  person  dies  seised  of  any  lands  or  interest  therein, 
not  having  lawfully  devised  the  same,  the  homestead  of  the  decedent 
shall  descend  to  the  surviving  spouse,  free  from  any  testamentary  or 
other  disposition  thereof  not  consented  to  in  writing,  for  life  if  there 
be  any  children  or  issue  of  a  deceased  child.  The  surviving  spouse 
shall  also  inherit  an  undivided  one-third  of  all  other  lands  of  which 
the  decedent  was  seised  at  any  time  during  coverture,  to  the  disposi- 
tion of  which  by  will  or  otherwise  the  survivor  shall  not  have  con- 
sented in  writing.    Rev.  Laws  1905,  §§  3646-3648. 

It  is  to  be  noted  that  the  statute  is  specific  and  clear,  and  has  pre- 
scribed the  exact  conditions  upon  which  the  surviving  spouse  shall 
be  entitled  to  share  in  the  land  of  a  decedent.  If  it  had  been  the  in- 
tention of  the  Legislature  to  impose  on  such  right  a  further  condi- 
tion or  exception  to  the  effect  that  no  one  should,  by  virtue  of  the 
statute,  take  or  inherit  property  from  a  decedent  whom  he  had  mur- 
dered, it  would  have  been  a  very  easy  matter  to  have  expressly  pro- 
vided for  such  a  contingency. 

It  is,  however,  urged  that  to  permit  one  to  inherit  from  an  ancestor 
or  spouse  whom  he  has  murdered  would  be  so  abhorrrent  and  repug- 
nant to  natural  law  and  justice  that  it  must  have  been  the  intention 
of  the  Legislature  to  make  such  a  case  an  exception  to  the  positive 
provisions  of  the  statute,  and  therefore  the  exception  will  be  implied, 
and  the  statute  construed  as  if  it  so  read.  It  is  the  settled  doctrine 
of  this  court  that  the  general  terms  of  a  statute  are  subject  to  implied 
exceptions,  founded  in  the  rules  of  public  policy  and  the  maxims  of 
natural  justice,  so  as  to  avoid  absurd  and  unjust  consequences.  Duck- 
stad  V.  Board  of  Co.  Com'rs,  69  Minn.  202-206,  71  N.  W.  933 ;  Baart 
V.  Martin,  99  Minn.  197-211,  108  N.  W.  945,  116  Am.  St.  Rep.  394. 

This  rule  of  construction,  however,  applies  only  to  cases  where  it 
is  clear  from  all  the  provisions  of  the  statute  that  the  omission  of  the 
exception  by  the  Legislature  was  unintentional,  and  an  intention  to 
include  it  may  be  fairly  inferred  from  all  of  the  provisions  of  the  stat- 
ute. In  every  case  the  question  is,  what  was  the  intention  of  the  Leg- 
islature, as  disclosed  by  the  language  of  the  statute?  State  ex  rel. 
Utick  V.  Board  of  Co.  Com'rs,  87  Minn.  325,  92  N.  W.  216,  60  L. 
R.  A.  161. 

The  exception  which  counsel  for  the  appellants  insist  should  be 
read  by  implication  into  the  statute  in  this  case  is  of  such  a  character 


Ch.  2)  PERSONS   TAKING   BY    DESCENT.  429 

that  no  inference  can  be  fairly  drawn  from  the  language  of  the  stat- 
ute that  the  Legislature  intended  to  include  it  therein.  This  conclu- 
sion is  sustained  by  the  great  weight  of  judicial  authority. 

The  only  case  directly  holding  to  the  contrary,  so  far  as  I  am  ad- 
vised, is  Riggs  V.  Palmer,  115  N.  Y.  506,  22  N.  E.  188,  5  L.  R.  A. 
340,  12  Am.  St.  Rep.  819,  the  reasoning  of  which  was  approved  in 
Ellerson  v.  Westcott,  148  N.  Y.  149,  42  N.  E.  540,  wherein  it  was 
held  that  the  general  terms  of  statutes  regulating  the  devolution  of 
property  and  the  making  and  effect  of  wills  are  subject  to  the  implied 
exception  or  condition  that  one  cannot  take  property  by  inheritance  or 
will  from  an  ancestor  or  benefactor  whom  he  has  murdered,  thereby 
reading  into  such  statutes  an  exception  found  in  the  civil  law  and  al- 
so in  the  Code  Napoleon. 

It  is  to  be  noted  that  this  case  did  not  involve  the  construction  and 
effect  of  a  statute  of  descent,  but  involved  only  the  question  whether 
a  devisee  could  take  title  to  property  under  the  will  of  a  testator 
whom  he  had  murdered  to  prevent  a  revocation  of  the  will  and  to  ob- 
tain the  immediate  possession  of  the  property.  It  is  not  difficult  to 
distinguish  the  cases,  for  there  is  a  clear  distinction  between  a  case 
where  the  title  passes  unconditionally  by  operation  of  the  positive  law 
of  the  state  and  one  in  which  the  title  passes  by  the  voluntary  act  of 
the  tcst3.tor  ^^ 

The  case  of  Carpenter's  Estate,  170  Pa.  203,  32  Atl.  637,  29  L.  R. 
A.  145,  50  Am.  St.  Rep.  765,  in  its  facts  is  substantially  like  the  one 
at  bar.  It  was  a  case  where  a  son  murdered  his  father,  and  it  was 
held  that  such  fact  would  not  justify  the  court  in  disregarding  the 
statutes  of  descent  and  distribution,  by  which  the  son  inherited  as  heir 
of  his  father.  The  court  in  its  opinion  reviewed  the  case  of  Riggs  v. 
Palmer,  declined  to  follow  it,  and  said :  "In  the  case  now  under  con- 
sideration it  is  asked  by  the  appellant  that  this  court  shall  decree  that 


12  "The  cases  relied  on  by  plaintiffs  in  error  as  authorities  against  the  ricjht 
to  inherit  are  those  Involving  insurance  policies,  wills,  and  the  like.  Riggs 
V.  Palmer,  115  N.  Y.  506,  22  N.  E.  188,  5  L.  R.  A.  340,  12  Am.  St.  Rep.  819 ; 
Ellerson  v.  Westcott,  148  N.  Y.  149,  42  N.  E.  ■)40:  Lundy  v.  Lundy,  24  Can. 
Sup.  Ct.  RFiO;  Life  Insurance  Co.  v.  Armstrong.  117  U.  S.  591.  fi  Sup.  Ct.  877, 
29  L.  Ed.  997 ;  Schmidt  v.  Northern  Life  Ass'n,  112  Iowa,  41,  83  N.  W.  800,  51 
L.  R.  A.  141.  84  Am.  St.  Rep.  323;  Box  v.  Lanier,  112  Tenn.  393,  79  S.  W. 
1042,  64  L.  R.  A.  458.  There  Is  a  manifest  difference,  however,  between  private 
grants,  conveyances,  and  comtracts  of  individuals  and  a  public  act  of  the  Leg- 
islature. It  might  be  that  a  person  would  not  be  permitted  to  avail  himself  of 
the  benefits  of  an  Insurance  policy  the  maturity  of  which  bad  been  accelerated 
by  his  felonious  act.  Many  considerations  of  an  equitable  nature  might  affect 
the  operation  or  enforcement  of  a  ?rant  or  contract  of  a  private  person  which 
would  have  no  application  or  bearing  on  a  statute  enacted  by, the  Legislature. 
So  far  as  the  descent  of  property  is  concerned,  the  courts  are  practically  unan- 
imous In  holding  that  all  the  povv^er  and  responsibility  rests  with  the  Legis- 
latur*.  They  have  spoken  with  one  voice  in  opposition  to  the  exclusion  of  an 
heir  from  taking  an  estate  on  account  of  crime,  where  the  statute  in  plain 
terms  designates  him  as  one  entitled  to  Inherit."  Johnston,  C.  J.,  in  McAUls- 
t«r  V.  Fair,  72  Kan.  533,  537,  84  Pac.  112-114,  3  L.  R.  A.  (N.  S.)  726,  115  Am 
St.  Rep.  233  (1906). 


430  DESCENT.  -    (Part  2 

in  case  of  the  murder  of  a  father  by  his  son,  the  inheritable  quality 
of  the  son's  blood  shall  be  taken  from  him,  and  that  his  estate  under 
the  statute  of  distribution  shall  be  forfeited  to  others.  We  are  un- 
willing to  make  any  such  decree,  for  the  plain  reason  that  we  have  no 
lawful  power  so  to  do.  The  intestate  law  in  the  plainest  words  desig- 
nates the  persons  who  shall  succeed  to  the  estate  of  a  deceased  intes- 
tate. It  is  impossible  for  the  courts  to  designate  any  different  person 
to  take  such  estate  without  violating  the  law.  We  have  no  possible 
warrant  for  doing  so.  The  law  says,  if  there  is  a  son,  he  shall  take 
the  estate.  How  can  we  say  that,  although  there  is  a  son,  he  shall  not 
take,  but  remote  relations  shall  take,  who  have  no  right  to  take  it,  as 
there  is  a  son  ?  From  what  source  is  it  possible  to  derive  such  a  power 
in  the  courts?  It  is  argued  that  a  son  who  murders  his  own  father 
has  forfeited  all  right  to  his  father's  estate,  because  it  is  his  own 
wrongful  act  that  has  terminated  his  father's  life.  The  logical  foun- 
dation of  this  argument  is  and  must  be  that  it  is  a  punishment  for  the 
son's  wrongful  act.  But  the  law  must  fix  punishments.  The  court 
can  only  enforce  them.  *  *  *  It  is  argued,  however,  that  it  would 
be  contrary  to  public  policy  to  allow  a  parricide  to  inherit  his  father's 
estate.  Where  is  the  authority  for  such  a  contention?  How  can  such 
a  proposition  be  maintained,  when  there  is  a  positive  statute  which 
disposes  of  the  whole  subject?  How  can  there  be  a  public  policy  lead- 
ing to  one  conclusion  when  there  is  a  positive  statute  directing  a  pre- 
cisely opposite  conclusion?  In  other  words,  when  the  imperative  lan- 
guage of  a  statute  prescribes  that  upon  the  death  of  a  person  his  estate 
shall  invest  in  his  children  in  absence  of  a  will,  how  can  any  doctrine 
or  principle  or  other  thing  called  'public  policy,'  take  away  the  estate 
of  a  child  and  give  it  to  some  other  person?  *  *  *  There  can  be 
no  public  policy  which  contravenes  the  positive  language  of  a  statute." 
In  the  case  of  Shellenberger  v.  Ransom,  31  Neb.  61,  47  N.  W.  700, 
10  L.  R.  A.  810,  28  Am.  St.  Rep.  500;  Id.,  41  Neb.  631,  59  N.  W.  935, 
25  L.  R.  A.  564,  the  facts  were  that  a  father  murdered  his  daughter 
for  the  purpose  of  possessing  himself  of  her  estate  as  her  only  heir  at 
law.  The  father  was  indicted  for  such  murder,  and  to  secure  his  at- 
torneys for  defending  him  he.  conveyed  to  them  his  interest  in  his 
daughter's  estate.  He  was  convicted,  but  while  under  sentence  of 
death  for  his  crime  he  was  hanged  by  a  mob.  The  court  upon  the 
original  hearing  of  the  case  held,  following  Riggs  v.  Palmer,  that  the 
estate  of  the  daughter  did  not  pass,  upon  her  death,  to  her  father,  for 
the  reason  that  a  person  cannot  take,  by  the  statutes  of  descent,  the  es- 
tate of  a  person  whom  he  murders  for  the  purpose  of  possessing  such 
estate.  But  the  court  on  a  rehearing  of  the  case  receded  from  its 
nrst  decision,  and  held  that  by  virtue  of  the  plain  and  unambiguous 
provisions  of  the  statute  of  descent,  which  left  no  room  for  construc- 
tion or  interpretation,  and  by  operation  of  the  statute,  title  to  the  prop- 
erty in  controversy  vested  eo  instanti  in  the  father  upon  the  death  of 
his  daughter  intestate,  without  reference  to  the  cause  or  manner  of 


Ch.  2)  PERSONS   TAKING   BY    DESCENT.  431 

her  death.  In  so  holding  the  reasoning  of  the  court  was  substantially 
as  follows :  "In  our  statute  of  descent  there  is  neither  ambiguity  nor 
room  for  construction.  The  intention  of  the  Legislature  is  free  from 
doubt.  *  *  *  The  majority  opinion  in  Riggs  v.  Palmer,  as  well 
as  the  opinion  already  filed  in  this  case,  seems  to  have  been  prompted 
largely  by  the  horror  and  repulsion  with  which  it  may  justly  be  sup- 
posed the  framers  of  our  statute  may  have  viewed  the  crime  and  its 
consequences.  This  is  no  justification  to  this  court  for  assuming  to 
supply  legislation,  the  necessity  for  which  has  been  suggested  by  sub- 
sequent events.  *  *  *  Neither  the  limitations  of  civil  law  nor 
the  promptings  of  humanity  can  be  read  into  a  statute  from  which 
they  are  absent,  no  matter  how  desirable  the  result  to  be  obtained  may 
be.  The  well-considered  cases  warrant  the  pertinent  conclusion  that 
when  the  Legislature,  not  transcending  the  limits  of  its  power,  speaks 
in  clear  language  upon  a  question  of  policy,  it  becomes  judicial  tribu- 
nals to  remain  silent.  *  *  *  Riggs  v.  Palmer  is  the  manifest  as- 
sertion of  a  wisdom  believed  to  be  superior  to  that  of  the  Legislature 
upon  questions  of  policy." 

It  was  held  by  the  Supreme  Court  of  Ohio  in  Deem  v.  Milliken,  53 
Ohio  St.  668,  44  N.  E.  1134,  affirming  the  reasoning  of  the  court  below 
(6  Ohio  Cir.  Ct.  R.  357),  that  a  statute  of  descent,  clear  in  its  terms, 
cannot,  upon  grounds  of  public  policy  or  otherwise,  be  so  construed  as 
to  exclude  one,  who  murders  his  intestate  for  the  purpose  of  succeed- 
ine  to  his  estate,  from  the  inheritance.  The  facts  in  that  case  were 
that  a  son,  who  was  sole  heir  at  law  of  his  mother,  murdered  her  for 
the  purpose  of  succeeding  to  the  title  of  her  land,  upon  which  he  gave 
a  mortgage  to  a  third  party.  He  was  afterwards  convicted  of  the 
crime  and  hanged.  The  action  was  between  the  brothers  and  sisters 
of  the  deceased  and  the  mortgagee ;  the  plaintiffs  claiming  that  no  in- 
terest in  the  land  of  the  intestate  descended  to  the  son  by  reason  of  his 
crime.  The  court,  in  overruling  this  contention,  stated  that :  "No  in- 
ference favorable  to  the  plaintiffs  in  error  can  be  drawn  from  the  sup- 
posed familiarity  of  the  lawmakers  with  the  principles  of  the  civil 
law,  where,  by  an  exception,  they  who  murder  their  ancestors  are  ex- 
cluded from  the  inheritance.  The  natural  inference  is  that  when  they 
incorporated  the  general  rule  into  the  statute,  and  omitted  the  excep- 
tion, they  intended  that  there  should  be  no  exception  to  the  rule  of 
inheritance  prescribed." 

It  was  held  in  the  case  of  Owens  v.  Owens,  100  N.  C.  240,  6  S.  E. 
794,  that  a  wife  who  was  accessory  before  the  fact  to  her  husband's 
murder  did  not  thereby  forfeit  her  right  to  dower  in  his  estate,  given 
to  her  by  the  laws  of  the  state. 

In  Kuhn  v.  Kuhn,  125  Iowa,  449,  101  N.  W.  151,  it  was  held  that 
a  widow,  who  was  the  murderer  of  her  husband,  was  nevertheless  en- 
titled to  the  distributive  share  of  his  estate  given  in  general  terms  by 
the  statute  of  descent.  Anent  the  claim  that  it  would  be  contrary  to 
public  policy  to  permit  a  person  to  derive  an  advantage  from  his  crim- 


432  DESCENT.  (Part  2 

inal  act  the  court  said :  "But  the  public  policy  of  a  state  is  the  law  of 
that  state  as  found  in  its  Constitution,  its  statutory  enactments,  and  its 
judicial  records.  *  *  *  And  when  public  policy  touching  a  partic- 
ular subject  has  been  declared  by  statute,  it  is  limited  by  such  statute, 
and  the  courts  have  no  authority  to  say  that  the  Legislature  should 
have  made  it  of  wider  application." 

See,  also.  Murphy  v.  Renner,  99  Minn.  348,  109  N.  W.  593,  8  L. 
R.  A.  (N.  S.)  565,  116  Am.  St.  Rep.  418,  where  it  was  held  that  al- 
though a  wife  had  abandoned  her  home,  her  husband  and  her  children, 
and  was  living  an  adulterous  life,  an  attempted  conveyance  of  his 
homestead  by  the  husband  without  her  signature  was  void. 

Upon  principle  and  authority  I  am  of  the  opinion  that  the  terms  of 
our  statutes  of  descent  and  distribution  are  so  clear,  precise,  and  man- 
datory that  there  is  no  room  for  construction ;  that  such  statutes  mean 
what  their  language  imports,  and  nothing  more;  and,  further,  that 
by  operation  of  law,  independent  of  any  act  or  volition  on  the  part  of 
Mrs.  Wellner,  the  legal  title  to  and  the  entire  beneficial  interest  in  the 
property  here  in  question  vested  in  her,  subject  to  the  claims  of  cred- 
itors, if  any,  upon  the  death  of  her  husband  intestate.  Noon  v.  Fin- 
negan,  29  Minn.  418,  13  N.  W.  197;  Jenkins  v.  Jenkins,  92  Minn.  310, 
100  N.  W.  7.^» 

2.  If,  however,  there  could  be  any  fair  doubt  as  to  such  conclusion, 
the  doubt  has  been  forever  set  at  rest  by  the  final  decree  of  the  probate 
court.  This  is  so  conclusively  settled  by  the  decisions  of  this  court 
that  any  extended  argument  in  its  support  is  unnecessary.     ♦     *     * 

Now  in  this  case  the  construction  of  our  statute  of  descent — that  is,, 
whether  it  was  subject  to  the  implied  exception  contended  for — and 
the  further  question  whether  the  widow,  by  reason  of  her  crime, 
should  be  declared  a  trustee  ex  maleficio,  and  the  estate  of  the  deced- 
ent assigned  accordingly,  were  matters  to  be  determined  by  the  probate 
court.  It  follows  that  its  decision" thereon,  by  its  decree  of  distribution, 
is  final  and  conclusive,  for,  while  our  probate  courts  are  not  possessed 
of  general  equity  powers,  yet  as  to  all  matters  of  which  they  have  ex- 
clusive original  jurisdiction  by  virtue  of  the  Constitution  they  possess 
all  powers,  whether  legal  or  equitable,  which  are  essential  to  the  exer- 
cise of  such  jurisdiction. 

3.  It  is  further  claimed  by  plaintiffs'  counsel  that,  if  it  be  conceded 
that  the  legal  title  to  the  property  in  question  vested  in  the  widow  by 
virtue  of  the  statute,  yet  by  reason  of  her  crime  she  took  no  beneficial 
interest  therein,  and  that  equity  will  hold  her  as  a  trustee  ex  maleficio 
of  the  property  for  the  use  and  benefit  of  the  plaintiffs,  the  minor  chil- 
dren of  the  decedent.  The  concession  defeats  the  conclusion,  for  eq- 
uity follows  the  law,  and  where,  as  in  this  case,  the  legal  title  to  prop- 
is  Another  case  allowing  the  murderer  to  inherit  is  De  Grafifenreid  v.  Iowa 

Laud  &  Trust  Co.,  20  Okl.  G87,  95  Pac.  624  (1908). 


Ch.  2)  PEKSONS  TAKING   BY   DESCENT.  433 

erty  vests,  not  by  the  act  or  contract  express  or  implied,  of  the  parties, 
but  by  the  operation  of  a  positive  statute,  which  has  been  given  effect 
by  a  final  judgment  of  a  court  of  competent  jurisdiction,  the  owner 
of  such  a  title  cannot  be  charged  as  a  trustee  ex  maleficio.  Where  a 
party  by  force,  fraud,  crime,  or  in  any  other  unconscientious  manner, 
secures  the  legal  title  to  property  which  equitably  belongs  to  another, 
or  in  which  he  has  some  interest,  absolute  or  contingent,  equity  will 
impress  a  constructive  trust  upon  the  property  and  charge  the  holder 
of  the  legal  title  as  a  trustee  ex  maleficio  for  the  party  who  has  the 
beneficial  interest  therein.     Nester  v.  Gross,   66    Minn.  371,  69   N 

W.  39. 

This  rule,  however,  c&n  have  no  application  to  the  precise  facts  of 
this  case,  and  no  court,  so  far  as  I  am  advised,  has  ever  applied  it  to 
a  case  like  this  one.  The  distinction  between  this  case,  where  the  legal 
title  vested  solely  by  statute,  and  the  cases  cited  on  behalf  of  the  plain- 
tiffs, in  which  the  property  rights  claimed  grew  out  of  a  contract,  ex- 
press or  implied,  or  arose  from  the  fraud  or  wrong  of  the  alleged  trus- 
tee with  reference  to  the  property,  is  obvious.  So  clearly  marked  is 
the  distinction  between  the  cases  that  it  never  occurred,  it  would  seem,. 
to  the  able  courts  whose  decisions  have  been  referred  to  that  it  could 
be  seriously  claimed  by  any  one  that  the  doctrine  as  to  trustees  ex 
maleficio  could  be  applied  to  a  case  where  the  title  vested  by  statute, 
for  no  reference  is  made  to  the  claim  in  the  opinions. 

In  none  of  the  cases  cited  and  relied  upon  by  counsel  for  plaintiffs 
did  the  legal  title  vest  by  statute,  but  nearly  all  of  them  involved  the 
effect  to  be  given  to  wills  or  life  insurance  policies.  Where  a  testator 
by  his  will  devises  property  to  another,  it  is  a  reasonable  and  permis- 
sible construction  of  the  will  to  hold  that  the  devise  was  upon  the  im- 
plied condition  that  the  devisee  should  not  murder  the  testator,  for 
manifestly  such  was  the  intention  of  the  testator.  Therefore,  when 
the  devisee  murders  the  testator,  there  is  a  breach  of  the  implied  con- 
dition upon  which  the  devise  was  made,  and  the  devisee  will  not  be 
permitted  to  take  the  gift.  Page  on  Wills,  §  687 ;  1  Underbill  on 
Wills,  §  160.  . 

The  same  principle  applies  to  a  case  where  a  testator  disinherits  his 
heir  by  his  will,  and  thereby  gives  his  property,  upon  his  death,  to 
another,  but  repents  and  intends  to  revoke  his  will,  and  to  prevent  the 
revocation  the  legatee  murders  him;  also  to  a  case  where  a  party 
gives  his  promissory  note  payable  at  a  specified  time  after  his  death, 
and  the  payee  or  his  indorsee  feloniously  kills  the  maker,  and  to  cases 
where  the  beneficiary  in  a  life  insurance  policy,  or  his  assignee,  mur- 
ders the  insured.  An  examination  of  the  cases  relied  upon  by  the 
plaintiff  shows  that  not  one  of  them  is  a  case  where  the  legal  title 
vested  by  statute,  but  all  of  them  are  in  their  facts  analogous^  to  the 
suggested  cases,  where  the  doctrine  contended  for  by  plaintiffs'  coun- 
sel unquestionably  applies. 
Cost.  Wills— 28 


434  DESCENT.  (Part  2 

But  in  this  case  neither  the  widow  nor  her  grantee  are  asking  or 
claiming  anything  from  a  court  of  equity.  The  absolute  title  to  the 
property  in  question  vested  in  the  widow  by  virtue  of  the  statute.  Her 
children  never  had  any  interest  therein,  and  her  crime  did  not  and 
could  not  deprive  them  of  any  property  rights.  Nor  did  she  receive 
the  property  as  a  gift  or  bounty  from  her  husband,  for  he  could  not 
have  disposed  of  it  by  deed  or  will,  or  otherwise,  without  her  written 
consent.  Solely  by  operation  of  the  statute  the  absolute  title  to  the 
property  in  question  vested  in  her.  There  is,  then,  no  basis  for  charg- 
ing her  as'trustee  ex  maleficio  and  decreeing  the  property  to  the  chil- 
dren. To  hold  otherwise  would  be  the  setting  aside  of  the  positive 
written  law  of  the  state,  the  annulling  of  a  final  judgment  of  a  court 
of  competent  jurisdiction  giving  effect  to  the  statute,  and  the  forfeiture 
of  an  estate  as  punishment  for  a  crime,  contrary  to  the  mandate  of 
our  Constitution. 

This  conclusion  is  regrettable,  but  it  inexorably  follows  from  the 
facts  in  this  particular  case.  The  law  ought  to  be  otherwise,  but  the 
remedy  rests  with  the  Legislature. 

Brown,  J.    I  concur  in  the  views  of  the  Chief  Justice. 

Elliott,  J.  (dissenting).  The  decision  of  the  majority  to  the  efifect 
that  the  decree  of  the  probate  court  is  conclusive  seems  to  infer  gen- 
eral equity  powers  in  that  court  which  I  had  not  supposed  it  to  pos- 
sess. I  am  obliged  to  dissent  from  the  conclusion  that  Mrs.  Tanke's 
title  to  this  land  rests  upon  the  decree  of  distribution,  and  that  she 
thereafter  is  personally  immune  from  the  controlling  power  of  courts 
of  general  equity  jurisdiction.  As  I  believe  that  this  court  has  power 
to  dispose  of  the  case  upon  its  merits,  I  feel  justified  in  stating  the 
doctrines  which  in  my  judgment  should  control. 

A  decision  which  allows  a  murderer  to  inherit  property  from  his 
victim  shocks  the  moral  sense  of  all  right-feeling  people,  and  that 
fact  in  itself  strongly  suggests  that  it  is  wrong  in  law,  morals,  and  jus- 
tice. Only  the  express  mandate  of  the  Legislature  will  justify  a  court 
in  reaching  such  a  conclusion,  and  such  mandate  I  do  not  find  in  the 
statute.  In  its  absence  no  court  having  at  its  command  the  principles 
and  doctrines  of  equity  jurisprudence  is  justified  in  confessing  impo- 
tence and  inability  to  prevent  the  successful  consummation  of  such  a 
wrong.  The  statute  is  in  general  terms  and  controls  the  devolution  of 
property  under  ordinary  normal  conditions.  The  Legislature  has  not 
said  that  a  wife  who  murders  her  husband  shall  not  inherit  his  prop- 
erty; neither  has  it  said  that  a  wife  who  murders  her  husband  shall 
inherit  his  property.  It  has  said  that  a  widow  shall  inherit  a  certain 
proportion  of  the  property  of  her  deceased  husband,  and  it  in  my 
judgment  leaves  such  exceptional  and  extraordinary  cases  as  the  pres- 
ent to  be  determined  by  fundamental  principles  which  for  generations 
have  been  established  in  our  jurisprudence. 

There  are  but  few  authorities  upon  the  exact  question,  and  they  are 
conflicting.     It  is  a  remarkable  fact  that  all  the  cases  of  this  charac- 


Ch.  2)  PERSONS   TAKING   BY    DESCENT.  435 

ter  have  arisen  in  this  country,  where  human  life  is  said  to  be  held 
less  sacred  than  in  other  parts  of  the  civilized  world.  The  first  case, 
that  of  Owens  v.  Owens.  100  N.  C.  240,  6  S.  E.  794,  arose  in  1888, 
and  it  was  held  that  a  widow,  who  had  been  convicted  as  an  accessory 
before  the  fact  of  the  murder  of  her  husband  and  confined  in  the  state 
prison  under  sentence  therefor,  was  entitled  to  dower  in  her  husband's 
lands  because  the  statute  which  gave  a  legal  dower  contained  no  provi- 
sion for  its  forfeiture  in  the  event  that  she  murdered  her  husband. 
The  court  felt  that  it  was  bound  by  the  literal  language  of  the  statute 
and  had  no  power  to  read  therein  an  exception  which  was  not  ex- 
pressed in  the  language.  The  same  conclusion  was  reached  in  Deem 
V.  Milliken,  53  Ohio  St.  668,  44  N.  E.  1134;  Id.,  6  Ohio  Cir.  Ct.  R. 
357;  Carpenter's  Estate,  170  Pa.  203,  32  Atl.  637,  29  L.  R.  A.  145,  50 
Am.  St.  Rep.  765,  Williams,  J.,  dissenting;  and  Shellenberger  v.  Ran- 
som, 41  Neb.  631,  59  N.  W.  935,  25  L.  R.  A.  564,  reversing  a  former 
decision  in  the  same  case  (31  Neb.  61,. 47  N.  W.  700,  10  L.  R.  A.  810, 
28  Am.  St.  Rep.  500).  The  Pennsylvania  case  was  approved  extra- 
judicially in  Holdom  v.  Ancient  Order,  159  111.  619,  43  N.  E.  772,  31 
L.  R.  A.  67,  50  Am.  St.  Rep.  183. 

On  the  other  hand,  the  New  York  Court  of  Appeals,  in  Riggs  v. 
Palmer,  115  N.  Y.  506,  22  N.  E.  188,  5  L.  R.  A.  340,  12  Am.  St.  Rep. 
819,  Gray,  J.,  dissenting,  held  that,  in  enacting  a  general  law  provid- 
ing for  the  devolution  of  property  by  will  or  descent,  the  Legislature 
could  not  have  intended  that  the  provisions  should  operate  in  favor  of 
one  who  murdered  his  ancestor  or  benefactor  in  order  to  speedily  come- 
into  possession  of  his  estate  either  as  devisee,  legatee,  or  heir  at  law. 
The  Legislature,  when  it  used  general  language,  could  not  have  in- 
tended, says  Judge  Earl,  that  a  murderer  should  inherit  the  prop- 
erty of  his  victim,  and,  "besides,  all  law,  as  well  as  contracts,  may  be 
controlled  in  their  operation  and  effect  by  general  fundamental  action 
of  the  common  law.  No  one  shall  be  permitted  to  profit  by  his  own 
fraud,  nor  to  take  advantage  of  his  own  wrong,  nor  to  found  any 
claim  upon  his  own  iniquity,  nor  to  acquire  property  by  his  own  crimes. 
These  maxims  are  dictated  by  public  policy,  have  their  foundation  in 
universal  law,  administered  in  all  civilized  countries,  and  have  no- 
where been  superseded  by  statute."  This  decision  was  approved  in 
the  subsequent  case  of  Ellerson  v.  Westcott,  148  N.  Y.  149,  42  N.  E. 

540. 

The  same  conclusion  was  reached  by  the  Supreme  Court  of  Ontario 
in  McKinnon  v.  Lundy,  24  Ont.  Rep.  132,  affirmed  in  24  Can.  S.  Ct. 
680,  and  by  the  Supreme  Court  of  Missouri  in  the  recent  case  of  Perry 
V.  Strawbridge,  209  Mo.  621,  108  S.  W.  641,  16  L.  R.  A.  (N.  S.) 
244,  123  Am.  St.  Rep.  510,  where  it  was  held  that  the  word  "wid- 
ower," as  used  in  the  statute,  would  not  be  construed  to  include  a  per- 
son who  has  made  himself  a  widower  by  murdering  his  wife.  In  re 
Kuhn's  Estate,  125  Iowa,  449,  101  N.  W.  151,  it  was  held  that  the 
statute  (Code,  §  3386),  which  provided  that  "no  person  who  feloni- 


436  DESCENT.  (Part  2 

ously  takes,  or  causes  or  procures  another  so  to  take,  a  life  of  another, 
shall  inherit  from  such  person  or  take  by  devise  or  legacy  from  him 
any  portion  of  his  estate,"  did  not  deprive  a  widow  who  was  the  mur- 
derer of  her  husband  of  her  distributive  share  of  his  estate,  which 
came  to  her  under  section  3366  as  a  matter  of  contract.  The  statute 
was  subsequently  amended  so  as  to  bring  the  surviving  spouse  within 
its  terms. 

I  am  not  impressed  by  the  supposed  difficulties  in  the  way  of  so 
construing  this  statute  as  to  exclude  a  case  of  this  character.  The 
books  are  full  of  cases  in  which  such  construction  has  been  resorted 
to,  and  the  principle  applied  is  neither  novel  nor  extreme.  The  idea 
that  the  Legislature  will  not  be  presumed  to  have  intended  to  legislate 
unjustly  early  found  expression  by  the  writers  on  the  common  law, 
and  Dwarris  drew  from  Plowden  and  Coke  the  maxim  of  interpreta- 
tion that,  "when  statutes  are  made  there  are  some  things  which  are 
exempted  and  foreprized  out  of  the  provisions  thereof  by  the  law  of 
reason,  though  not  expressly  mentioned;  thus  things  for  necessity's 
sake  or  to  prevent  a  failure  of  justice  are  excepted  out  of  statutes." 

The  courts  have  naturally  and  properly  always  striven  to  prevent 
injustice  which  would  otherwise  result  in  individual  cases  from  the  lin- 
guistic shortcomings  of  legislators.  The  limitations  of  language  are 
such  that  it  is  practically  impossible  to  so  phrase  a  Code  or  statute  as 
to  provide  for  all  the  manifold  conditions  and  the  possible  emergen- 
cies which  result  from  human  activities.  P>ut  justice  must  be  pre- 
sumed to  be  the  ultimate  purpose  which  the  Legislature  had  in  mind, 
and,  as  said  by  a  recent  writer,  "whenever  the  written  law  plainly  con- 
tradicts the  precepts  of  justice,  so  inwoven  into  our  natures  as  to  seem 
instinctive,  a  doubt  will  be  made  whether  the  Legislature  really  in- 
tended what  it  seems  to  have  declared."  Carter  on  Law,  Its  Origin, 
Growth,  and  Functions,  p.  283.  When  a  literal  construction  would 
result  in  an  unjust,  inequitable,  and  absurd  conclusion,  it  is  always 
held  that  the  general  language  of  the  statute  should  not  be  so  con- 
strued as  to  produce  such  a  result.  A  statute  should  be  construed  in 
the  light  of  the  fact  that  there  are  many  other  rules  and  principles 
of  law  and  equity,  the  existence  of  which  were  known  by  the  Legis- 
lature and  the  application  of  which  may  restrict  its  general  language. 

In  Cleaver  v.  Mutual  Life  Ins.  Co.,  1  Q.  B.  147,  which  grew  out 
of  the  famous  Maybrick  Case,  it  appeared  that  Mrs.  Maybrick  had 
murdered  her  husband  and  that  his  executors  claimed  the  proceeds  of 
certain  life  insurance  policies  as  against  the  assignees  of  the  wido\v. 
The  policy  contained  no  exceptions  which  covered  the  case,  and  the 
married  women's  act  of  1882  allowed  a  person  to  name  his  wife  as 
beneficiary  in  a  life  insurance  policy  and  create  a  trust  in  the  proceeds 
in  her  favor.  It  was  held  that  the  wife  by  murdering  her  husband 
had  rendered  the  trust  incapable  of  performance.  In  the  course  of  the 
decision  Lord  Justice  Fry  remarked  that  the  language  creating  a  trust 
xnust  "be  subject  to  the  principle  of  public  policy,     *     *     *     and  the 


Ch.  2)  PERSONS   TAKING    BY    DESCENT.  437 

/anguage  of  the  statute  must  be  read  as  though  it  contained  an  excep- 
tion in  such  a  case." 

Numerous  cases  illustrate  the  fact  that  the  ultimate  rights  of  par- 
ties are  not  always  measured  by  the  strict  and  literal  language  of  a 
statute.  A  party's  conduct  may  prevent  him  from  availing  himself  of 
an  apparent  right  given  by  a  statute.  Connivance  will  bar  the  right  to 
a  divorce,  although  not  so  provided  in  the  statute.  Lee  v.  Hammond, 
114  Wis.  559,  90  N.  W.  1073;  Pierce  v.  Pierce,  3  Pick.  (Mass.)  299, 
15  Am.  Dec.  210;  Robbins  v.  Robbins,  140  Mass.  528,  5  N.  E.  837, 
54  Am.  St.  Rep.  488 ;  Wilson  v.  Wilson,  154  Mass.  194,  28  N.  E.  167, 
12  L.  R.  A.  524,  26  Am.  St.  Rep.  237,  and  cases  cited  in  note.  In  eq- 
uity it  is  the  settled  rule  that  the  fraudulent  concealment  through  some 
artifice  or  act  of  a  cause  of  action  will  prevent  the  running  of  the  stat- 
ute of  Hmitations.  25  Cyc.  1214;  Blair  v.  Bromley,  5  Hare,  542; 
Moses  v.  St.  Paul,  67  Ala.  168 ;  Allen  v.  Conklin,  112  Mich.  74,  70 
N.  W.  339;  Lieberman  v.  Wilmington  Nat.  Bank,  2  Pennewill  (Del.) 
416,  45  Atl.  901,  48  L.  R.  A.  514,  28  Am.  St.  Rep.  414.  The  same  rule 
prevails  generally  in  actions  of  law.  Shelby  County  v.  Bragg,  135 
Mo.  291,  36  S.  W.  600 ;  Quimbey  v.  Blackey,  63  N.  H.  77 ;  25  Cyc. 
1215. 

A  party  who  is  guilty  of  fraud  cannot  avail  himself  of  the  statute 
of  fraud  for  the  purpose  of  protecting  and  retaining  the  fruits  of  his 
fraud.  5  Biner,  Abr.  pi.  40;  Kinard  v.  Hiers,  3  Rich.  Eq.  (S.  C.) 
425,  55  Am.  Dec.  643;  Rogers  v.  Rogers,  87  Mo.  257;  Haigh  v. 
Kaye,  L.  R.  7  Ch.  469.  So  a  fraud  will  estop  a  widow  from  claiming 
her  dower.  Dougrey  v.  Topping,  4  Paige  (N.  Y.)  94;  Smiley  v. 
Wright,  2  Ohio,  506 ;  Ellis  v.  Diddy,  1  Ind.  561 ;  Connolly  v.  Branst- 
ler,  3  Bush  (Ky.)  702,  96  Am.  Dec.  278.  See  cases  cited  in  a  note  in 
25  L.  R.  A.  564. 

Chapter  237,  p.  348,  Gen.  Laws  1901,  provided  that  after  the  ex- 
piration of  a  designated  time  the  title  to  land  registered  under  the 
Torrens  system  should  be  indefeasible.  No  exceptions  were  made; 
but  in  Baart  v.  Martin,  99  Minn.  197,  108  N.  W.  945,  116  Am.  St.  Rep. 
394,  it  was  held  that  when  the  registration  was  secured  by  fraud,  and 
the  rights  of  innocent  purchasers  were  not  involved,  the  decree  would 
be  vacated.  These  cases,  and  many  others  which  might  be  cited,  show 
conclusively  that  there  are  many  things  to  be  taken  into  consideration 
other  than  the  literal  language  of  the  statute.  The  exact  ground  upon 
which  the  decisions  proceed  is  not  always  clearly  expressed;  but  by 
the  application  of  some  rule  of  construction,  or  some  common-law  or 
equitable  principle,  a  party  is  prevented  from  securing  what  an  exact 
and  literal  reading  of  a  statute  would  give  him. 

While  as  a  general  proposition  I  find  no  difficulty  in  holding  that 
this  statute  was  not  intended  to  be  for  the  benefit  of  such  a  criminal. 
I  nevertheless  am  of  the  opinion  that  under  the  conditions  of  this  case 
die  legal  title  of  the  land  passed  to  the  widow.     But  she  obtained  the 


438  DESCENT.  (Part  2 

title  by  fraud  and  crime,  and  a  court  of  equity,  acting  in  personam, 
should  deprive  her  of  the  fruits  of  her  crime. 

An  effective  argument  in  favor  of  this  view  was  presented  by  Dean 
Ames  in  an  article  published  in  36  Am.  Law  Reg.  (N.  S.)  229.  In 
Tiffany's  Modern  Law  of  Real  Property,  vol.  2,  §  505a,  it  is  said  that 
certain  cases,  "though  no  doubt  correct  in  so  far  as  they  decide  that 
the  legal  title  to  the  property  of  the  deceased  passes  to  the  murderer, 
are  probably  incorrect  in  that  they  fail  to  apply  and  recognize  the  prin- 
ciple that  a  court  of  equity  will  intervene  to  compel  one  who  acquires 
property  by  the  commission  of  a  wrong  to  hold  it  as  a  trustee  ex  male- 
ficio  for  the  persons  rightfully  entitled  to  it." 

A  writer  in  the  New  York  Law  Journal  says  "that  the  requirements 
of  these  statutes  can  be  satisfied,  and  yet  a  just  result  be  reached,  by 
the  application  of  the  familiar  equitable  principle  that  no  one  may  take 
advantage  of  his  own  wrong,  and  that  one  who  through  crime  or  fraud 
acquires  the  legal  title  to  property  belonging  to  another  must  hold 
that  title  as  a  constructive  trustee  for  the  person  thus  wronged  or  his 
representatives.  No  one  will  claim  that  the  result  reached  in  the  Ne- 
braska and  this  Pennsylvania  case  was  a  just  one,  while  the  view  here 
set  forth  accomplishes  justice,  violates  no  statute,  and  preserves  the 
rights  of  a  purchaser  without  notice  of  the  crime  or  fraud.  The  ap- 
plication of  this  just  principle  makes  unnecessary  the  attempted  dis- 
tinction between  the  cases  of  wills  and  the  cases  where  the  statutory 
law  of  descent  are  in  question."  This  statement  is  quoted  in  30  Am. 
Law  Rep.  131,  and  the  editor  remarks  that:  "When  a  murderer  comes 
red-handed  into  a  so-called  court  of  justice,  and  there  demands  that  the 
court  shall  execute  a  statute  in  a  manner  which  never  could  have  been 
intended  by  the  Legislature  which  enacted  it,  so  as  to  put  him  into 
possession  of  property  through  a  capital  felony,  *  *  *  ^j^gj^  ^]^g 
courts  ought  to  withhold  their  aid.  *  *  *  By  granting  it  they 
make  themselves  in  a  moral  sense  accessories  after  the  fact,  and  lend 
encouragement  to  crimes  of  this  kind." 

Another  legal  journal  in  picturesque  language  says :  "It  really  seems 
to  us  that  the  question  is  too  clear  for  debate.  The  position  of  Ne- 
braska, Ohio,  and  North  Carolina  courts,  that  a  murderer  may  inherit 
from  his  victim,  because  the  statute  of  descent  does  not  say  that  he 
shall  not,  seems  almost  grotesque  in  its  blind  narrowness,  amounting 
to  practical  immorality.  One  might  as  well  contend  that  a  highway- 
man, who  kills  a  traveler  and  takes  his  horse,  although  he  must  go  to 
prison,  is  still  entitled  to  the  horse,  because  the  statute  does  not  pro- 
vide for  the  contrary.  The  Savior  probably  did  not  think  that  the 
wicked  men  in  the  parable  were  sound  in  law  when  they  said :  'This 
is  the  heir ;  let  us  kill  him,  and  the  inheritance  shall  be  ours.' "  6 
Green  Bag,  p.  535, 

As  I  understand  the  opinion  prepared  by  the  Chief  Justice,  it  con- 
cedes that  this  equitable  doctrine  may  properly  be  applied  when  the 
criminal  is  claiming  under  a  will,  but  asserts  that  it  is  not  applicable 


Ch.  2)  PERSONS   TAKING   BY    DESCENT.  439 

when  the  party  claims  under  the  statute  of  descent.  But  I  see  no 
difference  in  principle.  The  objections  are  that  the  technical  require- 
ments of  a  trustee  ex  maleficio  are  not  present.  But  the  controlling 
principle  lies  much  deeper,  and  the  technical  trusteeship  is  merely  the 
means  by  which  the  principle  is  applied  and  the  result  worked  out. 
Nor  does  the  application  of  this  rule  violate  the  maxim  that  equity 
follows  the  law,  which  means  merely  that  equity  applies  to  equitable 
titles  and  interests  those  rules  of  law  by  which  legal  titles  are  regu- 
lated, provided  this  can  be  done  in  a  manner  not  inconsistent  with  the 
equitable  titles  and  interests  themselves. 

The  doctrine  that  no  man  may  profit  by  his  own  wrong  lies  deep 
down  among  the  foundations  of  English  jurisprudence.  The  maxim, 
"Nullus  commodus  capere  potest  de  injuria  sua  propria,"  is  a  part  of 
the  common  law.  Broom,  Legal  Maxims,  p.  297.  "It  is  a  maxim  of 
law  that  no  man  shall  take  advantage  of  his  own  wrong."  Coke  Litt. 
148b ;  1  Hale,  P.  C.  482 ;  2  Hale,  P.  C.  386 ;  2  Inst.  713 ;  Plowd.  309 ; 
Finden  v.  Parker,  11  Mees.  &  W.  680.  "No  system  of  jurisprudence," 
says  Lord  Justice  Fr}',  "can  with  reason  include  among  the  rights 
which  it  enforces  rights  directly  resulting  to  the  person  asserting  them 
from  the  crime  of  that  person."  To  permit  this  would  be  to  subject 
the  law  "to  the  reproof  of  committing  the  flagrant  injustice  of  an  atro- 
cious criminal  enriching  himself  by  his  own  crime."  Cleaver  v.  Mut. 
Life  Ins.  Co.,  1  Q.  B.  147. 

There  is  no  presumption  that  a  statute  was  intended  to  repeal  the 
common  law.  Endlich,  Stat.  Const.  §  127;  25  L.  R.  A.  565,  note. 
The  principle  that  the  operation  of  an  act  is  to  be  interpreted  in  the 
light  of  the  common  law  is,  as  we  have  seen,  of  constant  application 
in  all  departments  of  the  law,  and  parties  are  thus  prevented  from  ac- 
quiring under  the  forms  of  the  law  new  rights  to  which  they  are  not 
in  fact  entitled. 

Equity  prevents  fraud  by  taking  from  the  wrongdoer  the  fruit  of 
his  deceit,  and  it  accomplishes  this  by  the  beneficial  doctrine  of  con- 
structive trust.  Whenever  the  title  to  property,  real  or  personal,  has 
been  obtained  by  actual  fraud,  or  through  any  other  similar  means, 
or  under  any  other  circumstances  which  render  it  unconscientious  for 
the  holder  of  the  legal  title  to  retain  and  enjoy  the  benefits  of  interest, 
equity  imposes  a  constructive  trust  in  the  property  in  favor  of  one 
who  is  truly  and  equitably  entitled  to  the  same.  The  form  and  variety 
of  these  trusts  are  practically  without  limit,  as  the  principle  is  applied 
whenever  necessary  for  the  doing  of  complete  justice.  Such  trusts 
are  raised  for  the  purpose  of  working  out  right  and  justice,  and  often 
directly  contrary  to  the  actual  intention  of  the  party  who  holds  the 
legal  title.  Pomeroy,  Eq.  Jurisprudence  (3d  Ed.)  vol.  1,  §  155;  Id., 
vol.  3,  §  1053;  Story,  Eq.  Juris.  (13th  Ed.)  vol.  1,  §  256;  Rollins 
V.  Mitchell,  52  Minn.  41,  53  N.  W.  1020,  38  Am.  St.  Rep.  519. 

This  doctrine  was  applied  in  Nester  v.  Gross,  66  Minn.  371,  69  N. 
W.  39,  where  it  was  held  that  if  one  party  obtains  title  to  land  by 


440  DESCENT.  (Part  2 

fraud,  or  by  the  violation  of  a  fiduciary  relation,  or  in  any  other  un- 
conscientious manner,  so  that  he  may  not  equitably  retain  it,  a  con- 
structive trust  will  be  imposed  upon  it  in  favor  of  one  who  in  good 
conscience  is  entitled  to  it.  From  what  was  said  in  EHerson  v.  West- 
cott,  148  N.  Y.  149,  43  N.  E.  540,  it  appears  that  this  was  really  the 
ground  upon  which  Riggs  v.  Palmer  was  decided.  "The  relief  which 
may  be  obtained  against  her,"  says  Chief  Justice  Andrews,  "is  equi- 
table and  injunctive.  The  court  in  a  proper  action  will,  by  forbidding 
the  enforcement  of  a  legal  right,  prevent  her  from  enjoying  the  fruits 
of  her  iniquity.  It  cannot  and  will  not  set  aside  the  will.  That  is 
valid;  but  it  will  act  upon  facts  arising  subsequent  to  its  execution, 
and  deprive  her  of  the  use  of  the  property." 

The  idea  also  appears  in  the  Canadian  case  of  McKinnon  v.  Lundy 
in  the  Ontario  Court  of  Appeals,  where  Maclennes,  J.,  said:  "One 
can  easily  understand  that,  in  the  case  of  a  murder  committed  with  the 
very  object  of  getting  the  property  of  the  deceased  by  will  or  intestacy, 
the  court  could  defeat  that  object,  even  by  taking  away  from  the  crim- 
inal the  legal  title  acquired  by  such  means;  and  it  may  be  that  the 
court  would  go  further,  and  take  the  legal  title,  even  though  the  crime 
were  committed  without  that  object" — citing  Luttrell  v.  Lord  Waltham, 
cited  in  14  Ves.  273,  290,  and  2  W.  &  T.  L.  Cas.  (6th  Ed.)  611;  Mes- 
taer  v.  Gillespie,  11  Ves.  639 ;  Story,  Eq.  Jur.  §§  256,  440.  When  Mc- 
Kinnon v.  Lundy  reached  the  Supreme  Court  of  Canada,  the  original 
opinion  was  reinstated,  thus  reversing  the  Ontario  Court  of  Appeals, 
and  holding  that  the  heir  forfeited  the  devise  by  his  crime.  The 
Chief  Justice  said:  "The  principle  upon  which  the  devisee  is  held  in- 
capable of  taking  under  the  will  of  the  person  he  kills  is  that  no  one 
can  take  advantage  of  his  own  wrong." 

The  doctrine  has  been  applied  under  many  varying  conditions,  but 
always  for  the  purpose  of  preventing  the  wrongdoer  from  profiting 
by  his  wrong.  The  rule  that,  where  the  execution  of  a  deed  is  in- 
duced by  fraud  or  force,  the  legal  title  passes,  but  the  gr-^ntee  will  be 
treated  as  a  constructive  trustee,  is  too  familiar  to  require  the  citation 
of  authorities,  A  devisee,  who  by  fraud  or  force  prevents  the  revoca- 
tion of  a  will,  will  be  considered  a  trustee  for  those  who  would  be  en- 
titled to  the  estate  if  the  will  had  been  revoked.  Gains  v.  Gains,  2  A. 
K.  Marsh.  (Ky.)  190,  12  Am.  Dec.  375;  Brown  v.  Doane,  86  Ga.  32, 
12  S.  E.  179,  11  L.  R.  A,  381,  and  cases  cited  in  note.  Fraud  may  be 
practiced  in  order  to  prevent,  as  well  as  secure,  a  conveyance,  and  at 
law  the  unexpressed  intention  of  the  grantor  goes  for  nothing.  But 
equity  will  see  that  the  wrongdoer  shall  not  profit  by  his  wrong,  and 
will  require  him  to  convey  the  legal  title  in  such  manner  as  to  give 
effect  to  the  defeated  intention  of  the  victim.     *     *     * 

The  abolition  of  the  formal  distinctions  between  law  and  equity 
have  not  affected  the  power  of  a  court  of  equity  in  such  case.  The 
Legislatures  now,  as  formerly,  enact  statutes  with  full  knowledge  of 
dhe  fact  that  the  courts  of  equity  still  exercise  their  ordinary  powers. 


Ch.  2)  PERSONS  TAKING  BY  DESCENT.  441 

As  said  in  Baart  v.  Martin,  99  Minn.  211, 108  N.  W.  950,  116  Am.  St. 
Rep.  39-i:  "It  must  be  presumed  that  the  Legislature  intended  and 
expected  that  the  courts  of  equity  would  remain  open  to  parties  who 
were  able  to  bring  themselves  within  the  rules  which  require  the  grant- 
ing of  equitable  relief.  The  fact  that  a  statute  does  not  expressly 
provide  that  fraud  shall  invalidate  acts  authorized  to  be  done  under 
it  does  not  deprive  the  courts  of  the  general  power  to  protect  the 
rights  of  parties."  The  fact  that  this  statute  does  not  expressly  pro- 
vide that  a  wife  who  murders  her  husband  shall  not  inherit  his  estate 
does  not  by  implication  deprive  the  courts  of  equity  of  their  ordinary 
powers  to  prevent  the  consummation  of  wrongs  and  fraud  by  acting 
directly  upon  and  controlling  the  actions  of  individuals. 

It  is  a  remarkable  fact  that,  while  cases  like  the  present  were  prac- 
tically unknown  in  this  country  until  within  very  recent  years,  they 
appear  to  have  been  quite  common  in  older  civilizations.  The  manner 
in  which  the  questions  were  then  disposed  of  is  important  only  in  so 
far  as  it  confirms  the  statement  of  Lord  Justice  Fry  that  "no  system 
of  jurisprudence  can  with  reason  include  among  the  rights  which  it 
enforces  rights  directly  resulting  to  the  person  asserting  them  from 
the  crime  of  that  person." 

By  the  civil  law  those  who,  being  capable  of  succeeding  as  heirs, 
rendered  themselves  unworthy  thereof,  were  excluded  from  the  suc- 
cessiofi.  The  causes  which  might  thus  render  the  heir  unworthy  were 
not  limited  to  such  as  were  expressly  stated  in  the  laws.  They  were, 
in  fact,  quite  indefinite.  "If  there  should  happen,"  says  Domat,  "any 
other  case  where  good  morals  and  equity  should  require  that  an  heir 
should  be  declared  unworthy,  it  would  be  just  to  deprive  him  of  the 
inheritance."  Civil  Law,  Domat,  part  2,  bk.  1,  t.  1,  §  3 ;  Mackelday, 
Roman  Law,  p.  550.  In  bringing  about  this  result  the  civil  law  pro- 
ceeded upon  what  were  substantially  the  same  principles  which  we 
have  found  applicable  under  our  system  of  equity  jurisprudence.  It 
did  not  regard  the  will  as  revoked  or  the  heir  disinherited  by  the  crime. 
The  naked  legal  title  to  the  property  passed  to  the  criminal,  but  was 
thereafter  taken  from  him.  It  was  a  case  of  restitution,  not  of  revo- 
cation. Winscheid,  Pandekten,  111,  §  669,  and  note  1 ;  lex  7,  §  4,  D. 
de  bonis  damnatorum  (48,  20) ;  D.  34,  9,  de  his  quae  ut  dignis  aufer- 
untur;  Maynz,  Cours,  v.  Ill,  §  482;  8  Harv.  Law  Rep.  p.  170.  Un- 
der the  Code  Napoleon  (section  727)  a  person  who  is  condemned  for 
having  caused  or  having  attempted  to  cause  the  death  of  the  testator, 
or,  being  informed  of  his  murder,  does  not  divulge  it  to  the  officers 
of  the  law,  is  excluded  from  the  succession.  A  similar  provision  is 
found  in  Quebec  Code,  §§  610,  893.  Demolembe,  Sue,  vol.  1,  No. 
217  et  seq. 

The  invocation  on  Mrs.  Tanke's  behalf  of  the  constitutional  provi- 
sion that  no  conviction  shall  work  corruption  of  blood  or  forfeiture  of 
€state  rests  upon  a  misapprehension  of  the  scope  and  purpose  of  that 
provision.     It  found  its  way  into  the  federal  Constitution  in  conneC' 


442  DESCENT.  (Part  2 

tion  with  the  punishment  for  treason.  It  was  adopted  in  the  constitu- 
tional convention  with  little  discussion  as  a  precautionary  measure 
suggested  by  the  history  of  the  English  law  of  treason.  An  early 
act  of  Congress  (section  24,  c.  36,  Acts  1790)  made  the  prohibition 
general  by  providing  that  "no  conviction  nor  judgment  for  any  capi- 
tal crime  shall  work  corruption  of  blood  or  forfeiture  of  estate."  Sim- 
ilar provisions  are  found  in  the  Constitutions  of  several  states.  Stim- 
son.  Federal  &  State  Constitutions,  p.  182,  note  6.  By  the  common 
law  a  person  convicted  of  a  felony  was  by  operation  of  law  placed  in 
a  state  of  attainder,  which  resulted  in  forfeiture  of  estate,  corruption 
of  blood,  and  civil  death.  This  result  followed,  not  from  the  com- 
mission of  the  crime,  but  as-  a  result  of  the  conviction  thereof.  The 
attainted  person  was  not  divested  of  his  land  until  after  office  found. 
So,  in  the  case  of  goods  and  chattels,  forfeiture  had  relation  only  to 
the  time  of  conviction,  and  after  the  commission  of  a  felony  and  be- 
fore conviction  the  guilty  party  could  make  a  valid  sale  or  assignment 
of  his  personal  property.  1  Blk.  Com.  132;  1  Chit.  Crim.  L.  733; 
Co.  Litt.  §  199;  Nichols  v.  Nichols,  Plowden,  477-486;  Hawkins, 
P.  C.  bk.  3,  c.  49,  §§  13,  30;  Perkins  v.  Brady,  1  Hare,  219. 

These  provisions  abolish  the  common-law  rule  by  which  corruption 
of  blood  and  forfeiture  of  estate  resulted  from  the  conviction  of  a 
felony.  Corruption  of  blood  rendered  the  felon  incapable  of  inheriting 
or  of  transmitting  property  by  inheritance.  Forfeiture  of  estate  trans- 
ferred his  property  to  the  state.  The  heirs  were  thus  deprived  of  their 
inheritance  and  the  treasury  enriched,  and  it  was  to  prevent  the  mani- 
fest wrong  and  injustice  to  innocent  persons  which  resulted  from  this 
doctrine  that  these  constitutional  provisions  were  adopted.  As  said 
in  Wallach  v.  Van  Riswick,  92  U.  S.  202,  23  L.  Ed.  473 :  "No  one 
ever  doubted  that  it  was  a  provision  intended  for  the  benefit  of  the 
children  and  the  heirs  alone — a  declaration  that  the  children  should 
not  bear  the  iniquities  of  the  fathers."  It  cannot  apply  to  a  case,  such 
as  the  present,  where  the  heir  is  the  wrongdoer  and  is  claiming  the 
inheritance  as  the  result  of  her  own  wrong.  If  an  attempt  was  being 
made  to  corrupt  the  blood  of  Mrs.  Tanke,  thus  preventing  her  from 
transmitting  her  estate  to  her  children  and  forfeiting  it  to  the  state, 
we  would  have  a  case  within  the  constitutional  prohibition. 

The  decree  of  the  probate  court  assigned  the  land  in  question  to 
Mrs.  Wellner,  and  the  prevailing  opinion  is  to  the  effect  that  this  de- 
cree is  final  and  conclusive  as  to  her  right  to  the  land.  It  is,  of  course, 
settled  that  the  probate  courts  of  this  state  are  vested  by  the  Constitu- 
tion with  exclusive  jurisdiction  over  the  estates  of  deceased  persons, 
and  their  final  decrees  assigning  the  residue  of  an  estate  of  a  decedent, 
pursuant  to  Rev.  Laws  1905,  §  3790,  conclude  all  parties  in  interest  as 
to  everything  properly  determined  by  the  decree.  Greenwood  v.  Mur- 
ray, 26  Minn.  259,  2  N.  W.  945 ;  Appleby  v.  Watkins,  95  Minn.  455, 
104  N.  W.  301,  and  other  cases  therein  cited.  But  such  a  decree  is 
final  and  conclusive  only  as  to  matters  within  the  jurisdiction  of  the 


Ch.  2)  PERSONS  TAKING   BY   DESCENT.  443 

court,  which  were  or  might  properly  have  been  determined  by  the 
court  in  the  course  of  the  administration  of  the  estate. 

The  probate  court  found  that  Welhier  died  seised  of  the  lands  in 
question,  that  the  woman  who  is  now  known  as  Mrs.  Tanke  was  the 
surviving  spouse,  and  assigned  the  land  in  question  to  her.  Upon  all 
of  these  facts  the  decree,  not  having  been  appealed  from,  is  now  con- 
clusive. But  the  title  to  the  real  estate  did  not  vest  in  the  widow  by 
virtue  of  the  decree  of  the  probate  court.  It  was  required  to  deter- 
mine who  were  the  heirs  of  the  deceased;  that  is,  to  ascertain  and 
adjudge  the  fact  of  the  identity  of  "the  person  or  persons  upon  whom 
the  law  casts  the  estate  in  lands,  tenements,  and  hereditaments  im- 
mediately upon  the  death  of  the  ancestor."  2  Blk.  201 ;  31  Cyc.  413. 
It  decreed  that  a  certain  person  was  the  surviving  spouse  and  one  of 
the  heirs — that  is,  one  of  the  persons  referred  to  in  the  statute;  and 
its  determination  of  her  heirship  is  conclusive.  Fitzpatrick  v.  Simon- 
son  Mfg.  Co.,  86  Minn.  147,  90  N.  W.  378.  It  can  no  longer  be  ques- 
tioned that  this  woman  was  the  widow  of  John  Wellner. 

But  the  legal  title  to  the  real  estate  had  vested  in  the  heirs  before 
this  decree  was  entered.  It  was  neither  created,  strengthened,  nor 
perfected  by  the  decree.  The  common-law  rule  with  reference  to  the 
descent  of  the  real  estate  of  a  deceased  person  prevails  in  this  state, 
subject  to  modifications  designed  to  subject  such  real  estate,  when 
necessary,  to  the  payment  of  debts,  devises,  and  expenses  of  adminis- 
tration. In  this  respect  we  maintain  the  old  distinction  between  real 
and  personal  property.     *     *     * 

It  follows  that  upon  the  death  of  Wellner  the  title  to  his  real  estate 
passed  to  his  heir;   but  Mrs.  Wellner  took  the  title  subject  to  what- 
ever defects  existed  therein,  and  subject  to  such  limitations  thereon 
as  grew  out  of  the  fraudulent  and  criminal  methods  by  which  it  was- 
acquired.     *     *     * 

In  my  judgment  the  widow  acquired  the  naked  legal  title  to  this 
real  estate,  subject  to  the  power  of  a  court  of  equity  to  deprive  her 
of  its  beneficial  use  and  require  its  conveyance  as  justice  and  equity 
demand.  The  administrator  never  took  possession.  The  land  was 
not  required  for  purposes  of  administration.  The  effect  of  the  decree, 
as  said  by  Chief  Justice  Gilfillan,  was  "to  discharge  the  land  from  the 
administration."  The  decree  in  no  way  affected  the  character  of  Mrs. 
Wellner's  title  to  the  land.  She  held  it  after  as  before  the  decree  with 
all  its  deficiencies,  and  a  court  of  equity  might  still  deprive  her  orf 
its  beneficial  use  and  require  her  to  convey  the  title  to  her  children. 

I  therefore  respectfully  dissent. 

Jaggard,  J.,  concurs  with  Ei<liott,  J.^* 

14  On  homicide  as  affecting  the  devolution  of  property,  see  36  Am.  Law  Reg. 
(N.  S.)  225;  3  L.  R.  A.  (N.  S.)  726,  note.  Those  courts  that  allow  the  mur- 
derer to  take  title  do  so,  it  would  seem,  in  order  that  innocent  purchasers  for 
value  from  him  may  be  protected.  But  that  is  no  reason  for  refusing  to  make 
him  or  his  grantee  with  knowledge  a  trustee  ex  maleficio. 


444  DESCENT.  (Part  2 


SECTION  6.— PERSONS  CIVILLY  DEAD 


AVERY  V.  EVERETT. 

(Court  of  Appeals  of  New  York,  1SS8.    110  N.  Y.  317,  18  N.  E.  148,  1  L.  R.  A. 

204,  6  Am.  St.  Rep.  3(J8.) 

Andrews,  J.^'  We  concur  in  the  conclusion  of  the  courts  below 
that  by  the  true  construction  of  the  will  of  John  H.  Southwick  his  son, 
Charles  H.  Southwick,  took  upon  the  testator's  death  a  vested  re- 
mainder in  fee,  limited  upon  the  life  estate  of  his  mother  in  the  prem- 
ises in  question,  subject,  however,  to  be  defeated  by  a  condition  subse- 
quent, viz.,  his  death  without  children,  in  which  event  the  substituted 
remainder  given  on  that  contingency  to  Augustus  Southwick,  the  son 
of  the  testator's  brother,  Nathan,  would  vest  in  possession,  thereby 
displacing  the  prior  fee  given  to  the  testator's  son,  Charles.  Vander- 
zee  v.  Slingerland,  103  N.  Y.  47,  8  N.  E.  247,  57  Am.  Rep.  701 ;  In 
re  Railroad  Co.,  105  N.  Y.  89,  11  N.  E.  492,  59  Am.  Rep.  478.  The 
plaintiff  claims  under  the  devise  to  Augustus  Southwick. 

The  widow  of  the  testator  died  September  1,  1869,  after  the  death 
of  her  husband.  Charles  H.  Southwick  is  still  living,  unmarried,  and 
without  children.  If  nothing  further  appeared,  the  plaintiff's  action 
would  necessarily  fail,  for  the  reason  that  the  contingency  had  not 
happened  upon  which  the  estate  of  Augustus  Southwick  is  limited, 
and  the  defendant,  George  Everett,  who  is  the  lessee  of  Charles  H. 
Southwick,  would  be  entitled  to  judgment.  The  plaintiff,  to  obviate 
this  apparent  difficulty,  proved  that  Charles  H.  Southwick,  in  October, 
1875,  was  convicted  of  the  crime  of  murder  in  the  second  degree,  and 
was  thereupon  sentenced  to  imprisonment  in  the  state  prison  at  Au- 
burn for  the  term  of  his  natural  life,  and  from  that  time  has  been  im- 
prisoned pursuant  to  such  sentence.  The  plaintiff"  contends  that  as 
the  life-estate  of  the  widow  was  terminated  by  her  death,  and  as 
Charles  H.,  on  his  sentence  to  imprisonment  for  life,  became  civilly 
dead,  the  contingent  estate  given  by  the  will  to  Augustus  Southwick  in 
case  "Charles  H.  should  die  without  children,"  has  become  an  actual 
fee.     *     *     ♦ 

The  Revised  Statutes  declare  that  a  person  sentenced  to  imprison- 
ment for  life  "shall  thereafter  be  deemed  civilly  dead."  2  Rev.  St.  p. 
701,  §  20.     *     *     * 

To  ascertain  the  meaning  of  the  phrase  "civil  death,"  as  used  in  the 
Revised  Statutes,  and  whether  the  statute  on  a  sentence  of  an  offender 
to  imprisonment  for  life  operates  eo  instanti  to  divest  him  of  his  es- 

16  The  statement  of  facts,  part  of  the  majority  opinion,  and  all  of  the  dis- 
senting opinion  of  Earl,  J.,  are  omitted. 


Ch.  2)  PERSONS  TAKING  BY  DESCENT.  445 

tate,  it  is  important  to  consider  how  civil  death  affected  rights  of  prop- 
erty at  cominon  law.  By  the  ancient  common  law,  when  sentence  was 
pronounced  for  a  capital  offense,  the  offender,  by  operation  of  law, 
was  placed  in  a  state  of  attainder.  1  Chit.  Crim.  Law,  723.  There 
were  three  principal  incidents  consequent  upon  an  attainder  for  trea- 
son or  felony — forfeiture,  corruption  of  blood,  and  an  extinction  of 
civil  rights,  more  or  less  complete,  which  was  denominated  civil  death. 
Forfeiture  was  a  part  of  the  punishment  of  the  crime,  and  was  of 
Saxon  origin,  by  which  the  goods  and  chattels,  lands  and  tenements 
of  the  attainted  felon  were  forfeited  to  the  king;  the  former  abso- 
lutely on  conviction,  and  the  latter  perpetually,  or  during  the  life  of 
the  offender,  on  sentence  being  pronounced.  The  doctrine  of  corrup- 
tion of  blood  was  of  feudal  origin,  introduced  after  the  Norman  con- 
quest. The  blood  of  the  attainted  person  was  deemed  to  be  corrupt, 
so  that  neither  could  he  transmit  his  estate  to  his  heirs,  nor  could  they 
take  by  descent  from  the  ancestor.  The  crime  of  the  attainted  felon 
was  deemed  a  breach  of  the  implied  condition  in  the  donation  of  the 
feud,  dum  bene  segesserit,  and  the  descent  to  his  heirs  being  inter- 
rupted by  the  corruption  of  blood,  his  lands  escheated  to  the  lord. 
But  this  escheat  was  subordinate  to  the  prior  and  superior  law  of 
forfeiture.  Com.  Dig.  tit.  "Forfeiture"  K ;  2  Bl.  Comm.  252 ;  1  Chit. 
Crim.  Law,  723-728;  1  Broom.  &  H.  Comm.  404;  Rex  v.  Morphes, 
1  Salk.  85. 

The  incident  of  civil  death  attended  every  attainder  of  treason  or 
felony,  whereby,  in  the  language  of  Lord  Coke,  the  attainted  person 
"is  disabled  to  bring  any  action,  for  he  is  extra  legem  positus,  and  is 
accounted  in  law  civiliter  mortuus"  (Co.  Litt.  §  199,  note),  or,  as  stat- 
ed by  Chitty  (1  Crim.  Law,  724),  "he  is  disqualified  from  being  a 
witness,  can  bring  no  action,  nor  perform  any  legal  function ;  he  is  in 
short  regarded  as  dead  in  law."  The  forfeiture  of  the  estate  of  the 
attainted  felon  to  the  king  or  to  the  lord,  was  not,  it  would  seem,  a 
consequence  of  the  situation  in  which  he  was  placed,  of  civiliter  mor- 
tuus, but  proceeded  upon  distinct  and  independent  reasons,  and  this, 
we  think,  is  rendered  plain  when  we  consider  how  the  law  of  forfei- 
ture was  construed.  The  attainted  person  was  not  divested  of  his 
lands  till  office  found.  This  is  very  distinctly  held  in  Nichols  v.  Nich- 
ols, 2  Plow.  486,  where  the  question  was  put:  "If  the  possession 
in  deed  or  law  of  the  lands  of  a  person  attainted  of  treason  should 
not  be  in  the  king  before  office  found,  in  whom  should  it  be,  by  the 
course  of  the  common  law,  in  the  life  of  the  person  attainted?"  and 
it  was  held  that  the  freehold  of  such  lands  would  be  in  fact  in  the 
person  attainted  so  long  as  he  should  live;  "for,"  the  court  say,  "as 
he  hath  capacity  to  take  in  deed  lands  by  a  new  purchase,  so  hath 
he  power  to  retain  his  ancient  possessions,  and  he  shall  be  tenant  to 
every  praecipe."  See,  also,  Vin.  Abr.  tit.  "Forfeiture,"  9.  So,  also, 
the  latter  opinion  is  that  he  could  devise  his  lands,  subject  only  to  the 
right  of  entry  for  the  forfeiture.    In  Bac.  Abr.  tit.  "Wills  and  Testa- 


44:6  DESCENT.  .  (Part  2 

ment,"  B,  it  is  said  that,  "however  the  wills  of  traitors,  aliens,  felons, 
and  outlawed  persons  are  void  as  to  the  king  or  lord  that  has  the  right 
to  the  lands  or  goods  by  forfeiture,  yet  the  will  is  good  against  the 
testator  himself,  and  all  others  but  such  person  only."  See,  also,  Vin. 
Abr.  tit.  "Attainder";   1  Jarm.  Wills  (5th  Ed.,  Bigelow)  *42. 

An  attainted  person  could  also  demise  his  lands  before  office  found. 
This  was  expressly  held  in  Doe  v.  Pritchard,  5  Barn.  &  Adol.  765, 
citing  a  passage  from  Perkins,  "that  a  man  attainted  of  felony  or 
murder  may  make  a  grant  of  a  rent,  or  common,  or  a  feoffment,  and 
the  same  shall  bind  all  persons  but  the  king  and  the  lord  of  whom  the 
land  is  holden."  So  a  person  attainted  could  take  lands  by  devise  or 
purchase.  He  could  be  grantor  or  grantee  after  attainder,  and  the 
grant  would  be  good  as  against  all  persons  except  the  king.  Vin.  Abr. 
tit.  "Attainder";,  Shep.  Touch.  231;  Perk.  Prof.  Bk.  26,  48.  He 
could  not  sue,  but  could  be  sued  (Vin.  Abr.  supra),  and  his  body  could 
be  taken  in  execution,  subject,  however,  to  the  paramount  claims  of 
public  justice  (1  Chit.  Crim.  Law,  725;  Davis  v.  Duffie,  1  Abb.  Dec. 
489).  He  could  make  no  contract  which  he  could  enforce.  In  Kyn- 
naird  v.  Leslie,  L.  R.  1  C.  P.  389,  it  was  said  by  Willes,  J.:  "More- 
over, an  attainted  person  is  not  incapable  of  contracting,  though  he 
cannot  pray  in  aid  of  the  king's  courts  to  enforce  his  contracts.  He 
can  contract  with  those  whose  consciences  bind  them  to  fulfill  their 
engagements,  and  he  can  take  a  grant,  or  grant  to  others  even  the  in- 
heritance which  an'office  found  would  es.cheat  to  the  crown;  and  the 
rights  so  acquired  by  third  parties  may  be  the  subject  of  an  action  in 
her  majesty's  courts,  and  his  contracts  may  be  enforced  against  him." 
In  the  case  last  cited  it  was  held  that  when  one  attainted  of  treason 
escaped  to  a  foreign  country,  and  there  married,  and  had  children, 
and  was  afterwards  executed  on  the  same  attainder,  the  marriage  was 
valid,  and  the  children  legitimate,  and  that  they  could  inherit  from 
each  other,  since  they  were  not  compelled  to  trace  the  inheritance 
through  the  ancestor. 

It  seems  to  be  a  necessary  conclusion  from  the  rules  of  the  common 
law  governing  rights  of  property  as  affected  by  forfeiture  for  crime, 
that  civil  death,  one  of  the  consequences  of  conviction  for  treason 
or  felony,  did  not  of  itself,  as  a  general  rule  at  least,  operate  to  divest 
the  offender  of  his  title  to  his  lands.  This  would  be  inconsistent  with 
the  settled  doctrine  that  an  attainted  person  retained  his  title  and  pos- 
session till  office  found,  and  that  meanwhile  he  could  make  a  grant  or 
demise,  good  except  as  against  the  king.  If  civil  death  worked  of 
itself  a  divestiture  of  his  estate,  either  no  entry  would  be  necessary  to 
complete  the  title  of  the  crown  by  forfeiture,  or  the  alternative  result 
would  follow — that  the  title  would  be  in  abeyance  from  the  time  of 
the  attainder  until  entry  by  the  king  or  lord — for  the  heir  could  not 
take  by  reason  of  corruption  of  blood,  and  the  felon's  title  would  be 
gone  by  his  civil  death.  But  we  have  not  been  able  to  find  any  case 
showing  that  as  a  general  rule  civil  death  modified  in  any  respect  the 


Ch.  2)  PERSONS   TAKING   BY    DESCENT.  447 

law  of  forfeiture,  or  deprived  the  attainted  person  of  his  lands  before 
the  forfeiture  was  enforced  by  entry. 

The  appellant,  to  sustain  his  contention  that  by  the  common  law 
civil  death  consequent  upon  attainder  operated  eo  instanti  to  divest 
the  title  of  the  offender  to  his  lands,  relies  upon  the  text  of  Littleton 
(section  200)  and  the  Commentaries  of  Lord  Coke.    Littleton,  in  the 
section  cited,  speaking  of  the  classes  of  persons  who  cannot  maintain 
an  action,  mentions,  as  the  fifth  class,  persons  who  have  entered  into 
religion,  and  become  monks  professed.    Such  a  person,  he  says,  "is  dead 
in  the  law,  and  his  sonne  or  next  cousin  incontinent  shall  inherit  him  as 
well  as  though  he  were   dead .  indeed.    And   when  he  entereth  into  reli- 
gion, he  may  make  his  testament,  and  his  executors ;  and  they  may  have 
an  action  of  debt  due  to  him  before  his  entry  into  religion,  or  any 
other  action  that  executors  may  have,  as  if  he  were  dead  indeed;  and  if 
he  make  no  executors  when  he  entereth  into  religion,  then  the  ordinary 
may  commit  the  administration  of  his  goods  to  others  as  if  he  were 
dead  indeed."     The  doctrine  that  persons  entering  into  religion  and 
becoming  monks  professed  were  civilly  dead  proceeded  on  the  ground 
that,  as  they  thereby  renounced  all  secular  concerns,  and  held  thern- 
selves  freed  from  the  obligations  resting  upon  other  members  of  civil 
society,  they  should  be  treated  as  though  they  were  dead  in  fact,  and 
as  having  surrendered  all  their  civil  rights.     1  Bl.  Comm.  132.    Coke, 
in  commenting  on  the   passage   from  Littleton  above  quoted,  says: 
"And  here  it  is  to  be  observed  that  an  abjuration,  that  is  a  deportation 
for  ever  into  a  forreine  land  like  to  profession  (whereof  our  author 
speaketh  here),  is  a  civil  death,  and  that  is  the  reason  that  the  wife 
may  bring  an  action,  etc.,  and  so  it  is  if  by  an  act  of  parliament  the 
husband  be  attainted  of  treason  or  felony,  and,  saving  his  life,  is  ban- 
ished, this  is  a  civil  death,  and  the  wife  may  sue  as  a  femme  sole." 

It  will  be  observed  that  Coke  adds  two  instances  of  civil  death  to 
the  one  mentioned  by  Littleton,  namely,  abjuration  and  banishment 
on  attainder  by  act  of  parliament.  But  in  his  note  to  section  199,  al- 
ready quoted,  he  declares  that  every  person  attainted  of  high  treason, 
petit  treason,  or  felony,  is  accounted  in  law  "civiliter  mortuus."  The 
fair  conclusion  from  a  comparison  of  these  passages  is  that  the  strict 
civil  death  mentioned  by  Littleton  in  the  case  of  a  monk  professed, 
which  was  followed  by  an  extinction  of  civil  rights,  including  the  right 
of  property,  was  confined  to  monks  and  the  two  other  cases  mentioned 
by  Coke.  This  seems  to  have  been  the  interpretation  of  Blackstone, 
who,  in  the  enumeration  of  the  causes  of  civil  death,  in  which  the 
next  heir  inherits  the  estate  as  though  the  ancestor  was  absolutely 
dead,  mentions  the  three  cases  of  profession,  abjuration  and  banish- 
ment, and  no  others.  1  Bl.  Comm,  132.  In  case  of  profession,  the  civil 
death  was  not  a  consequence  of  crime.  Abjuration,  which  was  con- 
nected with  the  law  of  sanctuary,  was  a  method  by  which  a  criminal 
escaped  punishment  on  condition  of  taking  an  oath  of  abjuration,  and 
leaving  the  realm  forever.     Banishment  on  attainder  by  act  of  paflia- 


448  DESCENT.  (Part  2 

ment  was  a  power  only  exerted  in  rare  instances.  Both  sanctuary 
and  abjuration  were  abolished  by  Statutes  James  I,  c,  25,  and  20  James 
I,  c.  18. 

The  Statute  54  Geo.  Ill,  c.  45,  abolished  forfeiture  of  lands  and 
corruption  of  blood  in  every  case  except  treason,  petit  treason,  and 
murder,  "so  that,"  as  said  by  Chitty,  writing  soon  after  the  passage 
of  that  statute,  "at  the  present  day,  on  attainder  of  ordinary  felony, 
the  criminal  forfeits  only  his  goods  and  chattels,  and  the  profits  of 
land  during  life,  while  his  real  estate  comes  in  the  ordinary  channels 
to  his  heir,  who  is  thus  restored  to  the  full  capacity  to  inherit."  1 
Chit  Crim.  Law,  735.  Still  later  the  Statute  33  &  34  Vict.  c.  23,  swept 
away  the  whole  doctrine  of  attainder,  corruption  of  blood,  and  for- 
feiture, except  forfeiture  consequent  on  outlawry;  and  the  same 
statute  provided  for  the  administration  of  the  estate  of  the  convicted 
felon  by  trustees  for  the  benefit  of  his  children  and  the  support  of  his 
family.  Under  this  statute  the  real  property  of  a  traitor  or  felon  re- 
mains his  own,  subject  to  the  temporary  estate  of  the  trustees,  and  he 
may  dispose  of  it  by  his  will;  but  by  the  statute  he  is  incapable  of 
alienating  or  charging  his  property,  or  of  making  any  contract.  1  Jarm. 
Wills  (5th  Ed.,  Bigelow)  44. 

It  is  a  suggestive  fact  bearing  upon  the  point  we  are  considering 
that  no  case  is  to  be  found,  either  before  or  after  the  Statute  54  Geo. 
Ill,  in  which  it  has  been  held  that  a  conviction  of  felony  cast  the  de- 
scent of  the  felon's  land  upon  his  heirs,  as  though  he  was  dead  in 
fact.  And  since  the  Statute  33  &  34  Vict,  it  is  certain  that  such  a 
doctrine  has  been  unknown  to  the  law  of  England.  That  statute  as- 
sumed that  the  title  of  the  felon  to  his  lands  was  not  divested  by  his 
conviction. 

It  remains  to  consider  how  the  question  stands  in  the  light  of  our 
own  statutes  and  decisions.  The  cases  on  the  subject  are  few,  but 
there  are  two  which  deserve  especial  attention — Troup  v.  Wood,  su- 
pra [4  Johns.  Ch.  248],  and  Platner  v.  Sherwood,  6  Johns.  Ch.  118, 
decided  in  1820  and  1822.  *  *  *  The  case  of  Platner  v.  Sher- 
wood was  a  direct  adjudication  that  by  the  g'eneral  rule  of  the  com- 
mon law  civil  death  did  not  operate  as  a  divestiture  of  the  estate  of 
the  convicted  felon.     *     *     * 

On  looking  at  the  statutes  regulating  the  transfer  and  devolution  of 
property  upon  the  death  of  the  owner,  it  will  be  found  that  their  natu- 
ral import  confines  the  meaning  to  a  natural  and  actual  death.  *  *  * 
The  only  statute  we  have  found  which  permits  an  inference  that 
civil  death  consequent  upon  imprisonment  for  life  operates  to  divest 
the  convict  of  his  estate  is  a  provision  in  the  act  relating  to  "abscond- 
ing, concealed,  and  nonresident  debtors,"  which  permits  the  proceed- 
ings authorized  thereby  to  be  taken  "whenever  any  debtor  shall  be 
imprisoned  in  the  state  prison  for  a  term  less  than  his  natural  life" 
(2  Rev.  St.  p.  15,  §  1)  ;  making  no  provision,  and  giving  no  remedy, 


Ch.  2)  PERSONS   TAKING   BY   DESCENT.  449 

under  that  act  against  the  property  of  one  imprisoned  on  a  life  sen- 
tence.    *     *     * 

But  when  it  is  considered  that  no  case  in  this  state  can  be  found 
where  the  will  of  a  person  imprisoned  on  a  life  sentence  has  been  ad- 
mitted to  probate  during  his  natural  life,  or  where  administration  has 
been  granted  on  his  estate,  or  dower  assigned  as  if  he  was  dead ;  nor 
any  case  where  the  title  to  property  has  been  traced  through  a  civil, 
as  distinct  from  a  natural,  death,— the  inference  seems  almost  irresist- 
ible that  the  doctrine  that  civil  death  consequent  upon  a  life  sentence 
divests  the  criminal  of  his  estate  has  no  foundation  in  our  law.  As 
to  right  of  administration,  see  Frazer  v.  Fulcher,  17  Ohio,  360. .  The 
disabilities  flowing  from  the  situation  of  civiliter  mortuus  have  a  wide 
scope,  without  including  this  incident.  The  statute,  without  expressly 
declaring  this  result,  assumes  that  a  life  sentence  of  the  husband  ipso 
facto  dissolves  his  marriage.  2  Rev.  St.  p.  687,  §  9,  subd.  6.  The  con- 
vict cannot  sue,  although  he  may  be  sued;  and  his  property  is  an- 
swerable to  his  creditors.  But  he  may  defend  an  action  brought 
against  him.  Code,  §  131 ;  Davis  v.  Duffie,  supra ;  Bowles  v.  Haber- 
niann,  95  N.  Y.  246.  He  cannot  enter  into  executory  contracts  and 
call  in  aid  the  courts  to  enforce  them.  But  he  may  transfer  his  prop- 
erty by  will  or  deed.  See  Rankin's  Heirs  v.  Rankin's  Ex'rs,  6  T.  B. 
Mon.  (Ky.)  531,  17  Am.  Dec.  161,  and  authorities,  supra.  His  polit- 
ical rights  are  taken  from  him;  his  wife  and  children  owe  him  no 
fealty  or  obedience.  It  is  not  difficult  to  suggest  possible  difficulties 
which  may  arise  in  the  administration  and  protection  of  the  property 
of  a  convict  sentenced  to  imprisonment  for  life.  These  are  matters 
which  may  be  the  appropriate  subject  of  legislation.  They  have  been 
met  in  England  by  the  Statute  33  &  34  Vict.,  by  which  a  trustee  is 
appointed  to  administer  the  convict's  estate  for  the  protection  of  all 
interests. 

We  here  conclude  our  examination  of  the  interesting  question  pre- 
sented by  this  record.  Any  one  who  takes  the  pains  to  explore  the 
ancient  and  in  many  respects  obsolete  learning  connected  with  the 
doctrine  of  civil  death  in  consequence  of  crime,  will  find  that  he  has 
to  grope  his  way  along  paths  marked  by  uncertain,  flickering,  and 
sometimes  misleading  lights;  and  he  cannot  feel  sure  that  at  some 
point  in  his  course  he  has  not  missed  the  true  road.  But  there  is  a 
guiding  principle,  which  in  the  present  case  greatly  aids  in  solving 
the  question  presented,  and  that  is  that  no  one  can  or  ought  to  be  di- 
vested of  his  property  in  invitum,  except  by  the  clear  warrant  of  law ; 
and  this  we  think  is  not  found  in  the  statute  relating  to  civil  death. 
The  weighty  words  of  Chancellor  Kent,  in  Platner  v.  Sherwood,  may 
appropriately  conclude  this  opinion:  "The  penal  consequences  of 
attainder  must  be  necessary  deductions  severely  required  by  the 
premises ;  and,  as  there  was  to  be  no  forfeiture  of  the  estate,  the  law 
would  not  be  consistent  with  itself  if  it  held  the  party  alive  for  the 
CosT.WrLLs— 29 


450  DESCENT.  (Part  2 

purpose  of  being  sued  and  charged  in  execution,  and  yet  dead  for  the 
purpose  of  transmitting  his  estate  to  his  heirs." 

We  think  the  order  of  General  Term  should  be  affirmed,  and  judg- 
ment absolute  entered  for  the  defendant  on  the  stipulation.  All  con- 
cur, except  Earl,  J.,  dissenting,  and  Gray,  J.,  not  sitting.^" 


In  re  DONNELLY'S  ESTATE. 

(Supreme  Court  of  California,  1899.     125  Cal.  417,  58  Pac.  Gl,  73  Am.  St. 

Rep.  62.) 

Harrison,  J.  Thomas  Donnelly  died  intestate  February  17,  189G, 
and  on  Decernber  3,  1897,  the  superior  court  made  a  decree  distrib- 
uting his  estate  to  his  widow  and  the  successors  in  interest  of  three 
of  his  children.  The  decedent  left  surviving  him  another  child,  James 
J.  Donnelly,  who,  prior  to  his  father's  death,  viz.  October  5,  1894,  was 
sentenced  to  imprisonment  in  the  state  prison  of  the  state  of  Cal- 
'ifornia  for  the  term  of  his  natural  life,  and  who  at  the  time  of  his 
father's  death  and  at  the  date  of  the  said  decree  of  distribution  was 
in  confinement  therein  under  such  sentence.  February  11,  1897,  James 
made  an  assignment  and  transfer  of  his  interest  in  the  estate  of  his 
father  to  Charles  J.  Stilwell,  who,  by  virtue  thereof,  claimed  to  have 
a  portion  of  the  estate  of  the  decedent  distributed  to  him.  The  court 
denied  his  claim,  and  distributed  the  estate  as  above  stated.  From 
this  decree  of  distribution  Stilwell  has  appealed. 

Section  674  of  the  Penal  Code  is  as  follows :  "A  person  sentenced 
to  imprisonment  in  the  state  prison  for  life  is  thereafter  deemed  civ- 
illy dead."  Civil  death  imports  a  deprivation  of  all  rights  whose  ex- 
ercise or  enjoyment  depends  upon  some  provision  of  positive  law.  In 
Anderson's  Law  Dictionary  civil  death  is  defined  to  be  "extinction  of 
civil  rights."  Bouvier  says :  "Civil  death  is  the  state  of  a  person  who, 
though  possessing  natural  life,  has  lost  all  his  civil  rights,  and  as  to 
them  is  considered  as  dead."  Abbott  defines  civil  death  to  be  "the 
legal  privation  or  extinction  of  a  person's  rights  and  capacities  among 
his  fellow  members  of  society."  In  Nerac's  Estate,  35  Cal.  392,  95 
Am.  Dec.  Ill,  the  court  said:  "If  the  convict  be  sentenced  for  life, 
he  becomes  civiliter  mortuus,  or  dead  in  law,  in  respect  to  his  es- 
tate, as  if  he  was  dead  in  fact." 

16  In  Smith  v.  Becker,  62  Kan.  541,  64  Tac.  70,  53  L.  R.  A.  141  (1901),  it 
was  held  that,  under  the  Kansas  statutes,  civil  death  did  not  cast  the  descent 
of  the  convict's  property  upon  his  lieirs.  See,  also,  Wooldridge  v.  Lucas,  7  B. 
Mon.  (Ky.)  49  (1846).  The  Kansas  court  said,  however  (02  Kan.  544,  64  Pac. 
71  [53  L.  R.  A.  141]) :  "We  have  no  doubt  of  the  power  of  the  Legislature, 
by  express  language,  to  cast  the  descent  of  a  convict's  property,  in  the  event 
of  his  civil  death,  on  such  persons  as  would  be  heirs  at  law  in  case  of  natural 
death."  But  see  Frazer  v.  Fulcher,  17  Ohio,  260  (1848).  Compare  the  cases  iu 
the  notes  to  In  re  Zeph's  Estate,  post,  p.  494. 


Ch.  2)  PERSONS   TAKING   BY    DESCENT.  451 

If  James  had  died  a  natural  death  at  the  time  he  was  sentenced 
to  imprisonment  in  the  state  prison  for  the  term  of  his  natural  life, 
the  correctness  of  the  decree  would  be  unquestioned,  and  for  the  pur- 
pose of  any  right  of  inheritance  his  civil  death  must  have  the  same 
effect.  The  right  of  inheritance  is  a  civil  right  existing  only  by  vir- 
tue of  the  law,  and  the  legislature  may  make  the  deprivation  of  this 
right  a  portion  of  the  penalty  to  be  imposed  for  the  commission  of 
a  crime.  The  provisions  of  sections  675  and  676  of  the  Penal  Code, 
instead  of  impairing  this  construction  given  to  section  074,  strengthen 
it  by  showing  that,  but  for  these  provisions,  in  the  opinion  of  the 
legislature,  the  civil  death  of  the  felon  would  extend  to  the  cases  there- 
in named;  and  the  enumeration  of  the  cases  wherein  section  674  is 
inoperative  authorizes  the  conclusion  that  those  are  the  only  cases  in 
which  it  is  not  to  be  applied. 

Avery  v.  Everett,  110  N.  Y.  317,  18  N.  E.  148,  1  L.  R.  A.  264,  6 
Am.  St.  Rep.  368,  cited  by  the  appellant,  has  no  application  to  the 
facts  of  the  present  case.  In  that  case  the  testator  died  in  1869,  leav- 
ing to  his  son,  Charles,  an  estate  in  the  lands  in  question,  which  the 
court  held  to  be  a  vested  remainder  in  fee,  limited  upon  the  life  of 
his  mother,  but  subject  to  be  defeated  by  his  dying  without  children. 
This  remainder  was  property  capable  of  being  transferred  by  Charles, 
and  vested  in  him  at  the  death  of  his  father.  In  1875  Charles  was 
convicted  of  murder,  and  sentenced  to  imprisonment  in  the  state 
prison  for  the  term  of  his  natural  life.  The  court  was  not  called 
upon  to  consider  whether  his  right  of  inheritance  was  destroyed  by 
the  sentence,  but  whether  the  sentence  operated  to  devest  him  of  the 
property  at  that  time  owned  by  him,  and  held  that  the  sentence  did 
not  have  the  effect  to  devest  him  of  his  interest  in  the  land. 

The  same  rule  exists  in  this  state  by  virtue  of  section  677  of  the 
Penal  Code,  which  provides :  "No  conviction  of  any  person  for  crime 
works  any  forfeiture  of  any  property,  except  in  cases  in  which  a  for- 
feiture is  expressly  imposed  by  law."  Under  the  conclusion  reached 
herein  it  ife  unnecessary  to  consider  the  respondent's  motion  to  dismiss 
the  appeal.    The  decree  is  affirmed.^'^ 

17  In  Estate  of  Wm.  Stott,  Myr.  Prob.  (Cal.)  1G8  (1878),  the  wife  of  a  man 
civilly  dead  was  held  to  be  entitled  to  take  as  a  "widow"  a  considerably  in- 
creased gift,  which  under  her  father's  will  was  to  go  to  her  in  case  she  should 
become  a  widow, 


452  DESCENT.  (Part  2 


SECTION  r.— ALIENS 


"At  the  common  law  an  alien  has  no  inheritable  blood,*  and  can 
neither  take  land  himself  by  descent,  nor  transmit  land  from  himself 
to  others  by  descent;  and  alienage  in  any  mediate  ancestor  will  in- 
terrupt the  descent  between  persons,  who  are  capable  of  taking  and 
transmitting  land  by  descent."  Gregory,  J.,  in  Murray  v.  Kelly,  27 
Ind.  42,  46  (1866). 

"The  common-law  rule  is,  and  always  has  been,  that  a  citizen  can- 
not take  by  representation  from  an  alien,  because  the  alien  has  no 
inheritable  blood  through  which  the  title  can  be  deduced.  2  Kent, 
Com.  54."  Bailey,  J.,  in  Beavan  v.  Went,  155  111.  592,  600,  41  N.  E. 
91,  31  L.  R.  A.  85  (1895). 

"But  it  is  a  well-settled  principle  of  the  common  law  that  the  de- 
scent between  brothers,  or  between  a  brother  and  sister,  is  immediate, 
and  the  alienage  of  the  father  does  not  impede  the  descent  between 
children.  * .  *  *  The  brothers  and  sisters  are  respectively  stocks 
of  descent,  and  alienism  is  an  impediment  only  where  it  comes  be- 
tween the  stock  of  descent  and  the  person  claiming  to  take.  ^  And  if 
some  of  the  persons  who  answer  the  description  of  heirs  are  incapable 
of  taking  by  reason  of  alienage,  they  are  discouraged,  and  the  whole 
title  vests  in  those  heirs  competent  to  take,  provided  they  are  not 
compelled  to  trace  the  inheritance  through  an  alien."  Andrew,  J., 
in  Luhrs  v.  Eimer,  80  N.  Y,  171,  179  (1880)." 

18  On  Inheritance  by  an  alien,  see  31  L.  R.  A.  177,  note.  The  matter  Is  gov- 
erned to-day  by  treaties  and  by  local  statutes. 

On  the  effect  of  treaties  on  an  alien's  right  to  inherit,  see  32  L.  R.  A.  177, 
note.  On  the  effect  of  state  Constitutions  and  statutes,  see  31  L.  R.  A.  84, 
note;  Id.  146.  note.  See,  also,  Haley  v.  Sheridan,  190  N.  Y.  331,  83  N.  E.  296 
(1907) ;  Abrama  v.  State,  45  Wash.  327,  88  Pac.  327,  9  L.  R.  A.  (N.  S.)  186 
(1907). 


Ch.  3)      THE  LIABILITY  OF  HEIPwS  FOR  THE  ANCESTOR'S  DEBTS.  453 


CHAPTER  III 

THE  LIABILITY  OF  HEIRS  FOR  THE  ANCESTOR'S 

DEBTS  1 


MACKIN  V.  HAVEN  et  al. 
(Supreme  Court  of  lUinois,  1900.    187  HI.  480,  58  N.  E.  448.) 

Magruder,  J.^  1.  The  propositions  of  law  numbered  4  and  5  asked 
by  the  appellant  upon  the  trial  below,  and  refused  by  the  trial  court, 
announce  that  the  appellees  (plaintiffs  below)  having  failed  to  file  the 
claim  sued  on  in  this  case  against  the  estate  of  Thomas  Mackin,  de- 
ceased, within  two  years  from  the  granting  of  letters  of  administra- 
tion on  said  estate,  the  claim  was  forever  barred,  by  section  70  of 
chapter  3  of  the  Revised  Statutes  of  Illinois,  unless  the  appellees 
should  find  other  estate  of  Thomas  Mackin,  not  inventoried  or  ac- 
counted for  by  the  administrators  of  said  estate.  The  refusal  of 
propositions  numbered  4  and  5  raises  the  question  whether  this  suit 
is  properly  brought  as  to  the  time  when  it  was  brought,  and  as  to  the 
person  against  whom  it  is  brought. 

Section  11  of  chapter  59  of  the  Revised  Statutes,  entitled  "Frauds 
and  Perjuries,"  provides  that  any  person,  his  heirs,  etc.,  who  may 
have  any  debts  or  demands  against  any  person  who  shall  die  intestate, 
and  leave  real  estate  to  his  heirs,  to  descend  according  to  the  laws 
of  this  state,  may  have  and  maintain  the  same  actions  which  lie  against 
executors  and  administrators  upon  his  bonds,  specialties,  contracts,  and 
agreements,  against  the  executors  or  administrators  and  the  heirs,  or 
against  the  executors  or  administrators  and  the  devisees,  or  may  jom 
the  executors  or  administrators,  the  heir  or  heirs,  and  the  devisees 
of  such  obligor,  and  shall  not  be  delayed  for  the  nonage  of  any  of 
the  parties.  2  Starr  &  C.  Ann.  St.  (2d  Ed.)  p.  2029.  Section  12  of 
the  same  act  provides  that  when  any  lands  shall  descend  to  any  heir, 
and  the  personal  estate  of  the  ancestor  of  such  heir  shall  be  insuffi- 

1  "I  have  shown  elsewhere  that  originally  the  only  person  liable  to  be  sued 
for  the  debts  of  the  deceased,  if  they  were  disputed  and  had  not  passed  to 
judgment  in  the  debtor's  lifetime,  was  the  heir.  In  Glanville's  time,  if  the 
effects  of  the  ancestor  were  not  sufBcient  for  the  payment  of  his  debts,  the 
heir  was  bound  to  make  up  the  deficiency  out  of  his  own  property.  In  the 
case  of  debts  to  the  Iuiig:,  this  liability  continued  as  late  as  Edward  III;  roy- 
alty, like  religion,  being  a  conservator  of  archaisms.  The  unlimited  liability 
was  not  peculiar  to  England.  While  it  continued,  we  may  conjecture  with 
some  confidence  that  a  judgment  against  the  heir  was  not  confined  to  the 
property  which  came  to  him  from  his  ancestor,  and  that  such  property  be- 
longed to  him  outright."  Mr.  Justice  O.  W.  Holmes  on  "Executors,"  in  9 
Harv.  Law  Rev.  42. 

2  The  statement  of  facts  and  a  part  of  the  opinion  are  omitted. 


454  DESCENT.  (Part  2 

cient  to  discharge  the  just  demands  against  such  ancestor,  such  heir 
shall  be  liable  to  the  creditor  of  the  ancestor  to  the  full  amount  of 
the  lands,  or  rents  and  profits  out  of  the  same,  as  may  descend  or  be 
devised  to  the  said  heir,  etc.  Id.  p.  2030.  Section  13  of  said  act  pro- 
vides that,  when  any  suit  is  brought  against  any  heir,  he  may  plead 
riens  per  descent  at  the  time  of  the  commencement  of  the  suit,  and 
the  plaintiff  may  reply  that  he  had  lands  from  his  ancestor  before  the 
commencement  of  the  suit,  and  if,  upon  issue  joined,  it  be  found  for 
the  plaintiff",  the  jury  shall  inquire  of  the  value  of  the  lands,  etc.,  and 
thereupon  judgment  shall  be  given  and  execution  awarded  as  afore- 
said, etc.    Id.  p.  2031. 

Section  70  of  chapter  3  of  the  Revised  Statutes,  entitled  "Admin- 
istration," provides  that  "all  demands  not  exhibited  within  two  years, 
as  aforesaid,  shall  be  forever  barred,  unless  the  creditors  shall  find 
other  estate  of  the  deceased,  not  inventoried  or  accounted  for  by  the 
executor  or  administrator,  in  which  case  their  claims  shall  be  paid  pro 
rata  out  of  such  subsequently  discovered  estate,"  etc.  1  Starr  &  C. 
Ann.  St.  (2d  Ed.)  p.  302.  Section  67  of  the  same  act  provides  that 
"any  creditor,  whose  debt  or  claim  against  the  estate  is  not  due,  may, 
nevertheless,  present  the  same  for  allowance  and  settlement,  and 
shall,  thereupon,  be  considered  as  a  creditor  under  this  act,  and  shall 
receive  a  dividend  of  the  said  decedent's  estate,  after  deducting  a 
rebate  of  interest  for  what  he  shall  receive  on  such  debt,  to  be  com- 
puted from  the  time  of  the  allowance  thereof  to  the  time  such  debt 
would  have  become  due,  according  to  the  tenor  and  effect  of  the  con- 
tract."   Id.  p.  300. 

It  is  conceded  that  the  claim  of  appellees  for  rent,  which  is  sued 
upon  in  this  case,  was  not  presented  against  the  estate  of  Thomas 
Mackin  within  two  years  after  the  issuance  of  letters  of  administra- 
tion. The  contention  of  appellant  is  that  it  could  have  been  presented 
within  the  time  stated,  and,  inasmuch  as  it  was  not  so  presented,  that 
it  has  been  barred,  and  cannot  now  be  enforced.  It  is  also  claimed 
by  counsel  for  appellant  that  this  suit  could  not  be  brought  against 
the  heirs  of  Thomas  Mackin,  under  the  above-quoted  sections  of  chap- 
ter 59,  because  he  left  personal  property  sufficient  to  discharge  all 
demands  against  his  estate. 

The  contentions  of  appellant  would  have  much  force  if  the  remedy 
here  sought  to  be  enforced  was  under  the  statutes  above  named.  But 
the  lease  or  party  wall  agreement  of  August  1,  1872,  contained  a 
provision  that  all  the  conditions  and  covenants  therein  contained  "shall 
be  binding  upon  the  heirs,  executors,  administrators,  and  assigns  of 
the  parties  to  these  presents,  respectively." ,  At  common  law  the  heir, 
as  such,  was  not  liable  for  the  debts  of  the  estate  of  his  ancestor,  but 
took  the  real  estate  free  of  any  claims  of  general  creditors.  While 
this  was  so,  yet  at  common  law  "the  ancestor  might,  by  a  specialty, 
bind  the  heir  to  the  payment  of  a  debt,  by  expressly  so  declaring  in 
the  deed,  and  the  heir  was  then  bound  to  the  extent  of  assets  descend- 


Ch.  3)      THE  LIABILITY  OF  HEIRS  FOR  THE  ANCESTOR'S  DEBTS.  455 

ed'i  that  is,  to  the  extent  of  the  vakie  of  the  real  estate  coming  from 
the  ancestor  to  the  heir  by  inheritance,  for  the  word  'assets,'  in  this 
connection,  always  meant  real  estate."  People  v.  Brooks,  123  111.  246, 
14  N.  E.  39 ;  Tayl.  Landl.  &  Ten.  §  462 ;  Ryan  v.  Jones,  15  111.  1  ; 
Hofifman  v.  Wilding,  85  111.  453.  In  Ryan  v.  Jones,  st:pra,  this  couit 
said :  "Nor  was  an  heir  liable  for  the  debts  of  the  ancestor,  in  respect 
of  lands  descended,  except  in  particular  cases,  such  as  debts  due  on 
specialties,  in  which  the  ancestor  expressly  bound  the  heir." 

The  debt  sued  for  in  the  case  at  bar  is  a  debt  due  upon  a  specialty, 
to  wit,  a  lease  or  party  wall  agreement  under  seal,  and  by  the  express 
terms  of  that  specialty  the  heirs  of  Thomas  Mackin  are  bound.  The 
appellant,  as  heir  of  Thomas  Mackin,  received  by  descent  real  estate 
worth  more  than  $100,000.  It  would  appear,  therefore,  to  be  clear 
that  the  heirs  of  Thomas  Mackin  are  liable  for  the  rent  sued  for  under 
this  lease.  The  liability  thus  imposed  at  common  law  could  only  be 
escaped  by  pleading  and  proving  riens  per  descent.  As  was  said  in 
People  V.  Brooks,  supra:  "If  the  heir  had  bona  fide  aliened  the  lands 
which  he  had  by  descent,  before  an  action  was  commenced  against 
him,  he  might  discharge  himself  by  pleading  that  he  had  nothing  by 
descent  at  the  time  of  suing  out  the  writ  or  filing  the  bill,  and  the 
obligee  had  no  remedy  at  law."  See,  also,  Crocker  v.  Smith,  10  111. 
App.  376.3 

3  "Under  the  civil  law,  the  acceptance  of  the  succession  by  the  heirs  pen- 
dered  them  liable  for  the  ancestor's  debts,  and  in  Louisiana  the  heir  has  the 
right  to  so  qualify  his  acceptance  that  he  may  avoid  personal  liability  by 
abandoning  the  effects  so  received  to  the  ancestor's  creditors.  Montgomery  v. 
Culton,  18  Tex.  749 ;  Succession  of  Murray,  41  La.  Ann.  1112  [7  South.  126]. 
It  is  evident  that  under  such  a  system  it  was  hazardous  for  the  heir  to  accept, 
since  the  ancestor's  debts  might  absorb,  not  only  the  property  so  received,  but 
also  the  individual  estate  of  the  heir.  Under  the  common  law  the  heir  took 
the  lands  discharged  of  all  debts  of  the  ancestor,  except  specialties  in  which 
he  had  been  specially  bound ;  his  liability  in  such  case  being  on  the  contract, 
by  which  the  ancestor  was  authorized  to  bind  himself  personally  to  the  extent 
of  the  value  of  the  lands  descended,  so  long  as  they  remained  in  his  possession, 
luit  there  was  no  lien  on  the  lands,  nor  personal  liability  on  his  part  after  he 
had  conveyed  them  (Investment  Co.  v.  Smart,  L.  R.  10  Ch.  App.  Cases,  577), 
and  the  devisee  took  the  lands  free  from  all  debts  of  the  ancestor  (Sauer  v. 
Griffin,  67  Mo.  654;  3  Williams  on  Executors,  c.  11),  while  the  executor  or 
administrator  took  the  property  to  which  he  was  entitled  urider  the  law  sub- 
ject to  the  payment  of  the  decedent's  debts.  Thus  under  the  civil  law  great 
injustice  might  be  done  the  heir  by  absorbing  both  the  ancestor's  and  his  own 
property  in  the  payment  of  the  ancestor's  debts,  and  under  the  common  law  a 
like  injustice  might  result  to  the  creditor  by  allowing  the  heir  to  take  valuable 
la,nds  free  of  debts  where  he  had  not  been  bound  by  any  specialty,  or,  even 
if'  he  had.  to  evade  his  lialiility  thereon  by  a  sale  of  the  lands  before  suit,  or 
by  allowing  the  ancestor  to  practically  defeat  even  specialty  creditors  by  devis- 
ing his  lands.  In  order  to  remedy  some  of  these  evils,  statutes  were  enacted 
in  England  at  an  early  day  imposing  upon  the  devisee  a  like  liability  to  that 
resting  upon  the  heirs  and  making  both  liable,  not  only  while  they  retained 
the  property,  but  for  the  value  in  case  they  sold  the  same.  See  statute  set 
out  in  Williams  on  Executors,  vol.  3.  c.  2.  But  under  the  common  law,  thus 
amended  by  statute,  the  ancestor's  debts,  even  by  specialty,  were  not  charged 
as  a  lien  on  the  lands,  and  the  heir  or  devisee  could  prevent  the  creditor  from 
subjecting  them  bv  transferring  to  a  bona  fide  purchaser  before  suit.  Spack- 
man  v.  Timbrell,  11  Eng.  Ch.  Rep.  424.     From  this  general  statement  of  the 


45G  DESCENT.  (Part  2 

It  is  claimed  on  the  part  of  the  appellant  that  the  common-law  rem- 
edy upon  specialties,  in  which  the  ancestor  expressly  bound  the  heir, 
has  been  superseded  by  sections  from  11  to  li,  inclusive,  of  our  stat- 
ute in  regard  to  frauds  and  perjuries,  being  chapter  5'9  of  the  Revised 
Statutes.  We  are  of  the  opinion,  however,  that  the  provisions  of  the 
statute  thus  referred  to  are  merely  cumulative  to  the  common-law 
remedy.  They  have  the  effect  of  furnishing  additional  remedies  to 
all  the  creditors  of  the  deceased,  including  specialty  creditors.    *    *    * 

In  Crocker  v.  Smith,  supra,  the  appellate  court,  speaking  through 
the  late  Justice  Baker  of  this  court,  who  was  then  a  member  of  that 
court,  said :  "It  is  clear  that  appellee  does  not,  by  the  averments  in 
his  declaration,  bring  himself  within  the  provisions  of  the  statute  of 
frauds  and  perjuries;  and  it  is  contended  by  appellant  that  the  pro- 
visions of  that  statute  worked  a  repeal  of  the  common-law  remedy. 
We  do  not  so  understand  the  law.  The  remedies  against  heirs  and 
devisees  furnished  by  the  statute  are  curfiulative  in  their  character, 
and  afford  not  only  a  means  for  the  collection  of  many  debts  and  de- 
mands against  deceased  persons,  for  the  collection  of  which  no  provi- 
sion existed  prior  thereto,  but  also  additional  means  for  the  collection 
of  such  debts  as  were  already,  at  common  law,  a  charge  upon  the 
heir.  The  purpose  of  the  statute  was  not  to  change  the  common-law 
remedy  then  existing  for  specialty  creditors,  when  the  ancestor  had 
expressly  bound  the  heir,  but  to  give  additional  remedies,  not  only  to 
them,  but  to  all  creditors  of  the  deceased." 

The  view  that  the  statute  has  not  superseded  the  old  common-law 
rule  and  remedy,  but  has  merely  given  additional  and  cumulative 
remedies,  is  sustained  by  the  principles  of  statutory  construction  ap- 
plicable in  such  cases.  It  is  a  general  rule  in  the  construction  of  stat- 
utes that  they  are  not  to  be  presumed  to  alter  the  common  law  fur- 
ther than  they*  expressly  declare.  Statutes  are  to  be  construed  in 
reference'  to  the  principles  of  the  common  law,  and  it  is  not  to  be  pre- 
sumed that  the  legislature  intends  to  make  any  innovation  upon  the 
common  law,  further  than  the  case  absolutely  requires.  Cadwallader 
v.  Harris,  76  111.  370;  Bank  v.  McCrea,  106  111.  281;  Smith  v.  Laatsch, 
114  111.  271,  2  N.  E.  59.    *    *    * 

Counsel  for  appellant  refers  to  a  number  of  cases  in  support  of 
the  position  that  the  heir  is  not  liable  for  the  debts  of  his  ancestor 
where  such  ancestor  leaves  personal  estate  sufficient  to  discharge  all 
just  demands  against  his  estate.  People  v.  Brooks,  supra;  Guy  v. 
Gericks,  85  111.  428 ;  Hoffman  v.  Wilding,  supra ;  Laughlin  v.  Heer, 
89  111.  119 ;   McLean  v.  AlcBean,  74  111.  134.     But  a  careful  study  of 

condition  of  the  civil  and  common  law,  modified  by  Englisii  statutes,  It  may 
be  seen  tiiat  it  was  advisable,  when  our  Legislature  came  to  enact  our  probate 
law  in  1848,  to  make  radical  departures  from  both  in  order  to  do  equal  justice 
to  creditors  on  the  one  side,  and  heirs,  devisees  and  legatees  on  the  other.' 
Denman.  J.,  in  Blinn  v.  McDonald,  92  Tex.  G04,  606,  607,  46  S.  W.  787,  788 
(1899). 


Ch.  3)      THE  LIABILITY  OF  HEIRS  FOR  THE  ANCESTOR'S  DEBTS.  457 

these  cases  will  show  that,  under  the  facts  therein  stated,  there  were 
no  common-law  remedies.  In  all  the  cases  so  cited  the  proceedings 
were  attempted  to  be  had  directly  under  the  statute,  and  they  were 
all  cases  in  which  no  remedy  existed  at  the  common  law;  and,  to 
justify  a  recovery,  it  was  necessary  that  the  statute  should  be  strictly 
complied  with.  There  is  nothing  in  these  cases,  so  far  as  we  can  dis- 
cover, which  is  inconsistent  with  the  decision  in  Crocker  v.  Smith, 

supra. 

Inasmuch  as  the  remedy  here  sought  to  be  enforced  is  the  common- 
law  remedy  above  referred  to,  it  was  not  necessary  to  file  the  present 
claim  against  the  estate  of  Thomas  Mackin,  or  to  make  any  attempt  to 
collect  it  from  his  personal  estate.  In  addition  to  this,  the  rent  did 
not  fall  due  until  August  1,  1896,  which  was  after  the  expiration  of 
the  two  years  allowed  by  law  for  the  filing  of  claims  in  the  county  or 
probate  court.  In  construing  section  67  of  chapter  3  in  regard  to  "Ad- 
ministration," as  to  the  matters  above  quoted,  we  held  in  Dunnigan 
v.  Stevens,  122  111.  396,  13  N.  E.  651,  3  Am.  St.  Rep.  496,  that,  if  the 
obligation  is  an  absolute  undertaking,  the  claim  can  properly  be  proved 
against  the  estate  in  the  probate  court,  even  where  the  debt  or  claim  is 
not  due,  but  that,  if  the  obligation  is  merely  a  contingent  liability, 
then  the  claim  is  not  properly  provable  in  the  probate  court,  and  can- 
not be  allowed.  In  Stone  v.  Clark's  Adm'rs,  40  111.  411,  where  the 
claim  filed  was  based  upon  an  indemnifying  bond  made  by  Clark, 
under  which  no  damage  resulted  to  Stone  until  more  than  two  years 
after  letters  of  administration  were  granted,  it  was  held  that  Stone 
had  no  claim  until  he  was  damnified,  and  as  he  was  not  liable  on  the 
notes,  and  suffered  no  damage  until  after  the  lapse  of  the  two  years, 
his  claim  had  not  accrued  within  two  years,  and  no  suit  could  have 
been  instituted  within  the  two  years. 

In  the  case  at  bar  the  lease  or  party  wall  agreement  provides  that 
the  premises  are  to  be  held  by  Thomas  Mackin  from  August  1,  1872, 
until  August  1,  1902,  "if  the  said  wall,  one-half  of  which  is  upon  the 
premises  hereby  demised,  shall  stand  so  long.  This  lease  to  be  im- 
mediately determined  by  a  total  destruction  of'  said  wall."  It  thus 
appears  that  until  August  1,  1896,  arrived,  it  could  not  be  deter^ 
mined  whether  the  wall  might  not  be  totally  destroyed,  or  whether  the 
lease  might  not  be  determined  by  failure  to  pay  the  rent,  or  what 
amount  of  rent  would  be  due  on  that  day ;  for  at  any  time  the  repre- 
sentatives of  the  Haven  estate  might  see  fit  to  use  some  portion  of  the 
wall  erected  by  Mackin  under  the  terms  of  the  lease,  and  in  such  case 
deduction  would  be  required  from  the  amount  of  the  rent.  The  pay- 
ment of  rent  under  this  lease  was,  therefore,  dependent  and  condi- 
tioned upon  the  happening  or  not  happening  of  certain  events.  If  the 
claim  had  been  presented  to  the  probate  court  during  the  two  years 
for  the  rent  due  August  1,  1896,  it  would  have  been  a  sufficient  an- 
swer thereto  to  say  that  the  rent  was  only  payable  upon  a  contingency. 
The  only  effect  of  the  provision  of  the  statute  embodied  in  section  70 


458  DESCENT.  (Part  2 

of  chapter  3,  as  above  quoted,  is  to  bar  any  action  against  the  admin- 
istrator or  executor  unless  the  claim  is  filed  within  the  two  years,  ex- 
cept as  to  assets  not  inventoried.  Snydacker  v.  Cattle  Co.,  154  111. 
220,  40  N.  E.  466. 

Counsel  for  appellant  objects  to  the  form  of  the  judgment  entered 
by  the  court  below,  and  says  that  the  judgment  was  erroneous,  because 
it  was  rendered  against  the  appellant  alone,  whereas  it  is  claimed  that 
the  judgment,  if  any,  should  have  been  against  appellant  and  the  other 
heir,  payable  out  of  the  real  estate  descended.  This  question  was  not 
raised  either  in  the  county  or  appellate  court,  and  it  is  therefore  too 
late  to  consider  it  in  this  court.  It  is  shown  here  that  appellant,  as 
heir  of  Thomas  Mackin,  received  real  estate  by  descent,  exceeding 
in  value  $100,000,  and  that  he  still  holds  all  the  property  so  acquired, 
and  at  the  time  of  the  trial  was  in  receipt  of  the  rents  and  profits 
thereof.  He  was  clearly  personally  liable  for  the  payment  of  this 
claim,  arising  out  of  a  breach  of  his  ancestor's  covenant.  That  cove- 
nant bound  him  jointly  with  the  other  heirs  of  Thomas  Mackin,  and 
by  the  statute  of  this  state  "all  joint  obligations  and  covenants  shall 
be  taken  and  held  to  be  joint  and  several  obligations  and  covenants." 
Rev.  St.  c.  76,  tit.  "Joint  Rights  and  Obligations,"  §  3;  2  Starr  & 
C.  Ann.  St.  (2d  Ed.)  p.  2321.    *    *    * 

The  judgment  of  the  Appellate  Court  [affirming  a  judgment  of  the 
county  court  in  favor  of  plaintiffs]   is  affirmed.     Judgment  affirmed.* 

*  Local  statutes  should  be  consulted.  "By  virtue  of  statutes  now  in  force 
it  is  the  universal  rule  in  the  United  States  that  the  real  estate  of  a  decedent 
is  assets  for  the  payment  of  his  just  debts  of  every  description,  but  the  meth- 
ods of  appropriating  it  by  action  at  law  against  heirs  or  devisees  are  far  from 
uniform.  In  some  of  the  states  the  creditor  may  sue  the  heirs  or  devisees 
jointly  with  the  personal  representatives,  or  separately  under  certain  specified 
conditions.  In  others  the  legal  liability  of  heirs  and  devisees  is  provisional 
only  and  depends  upon  the  exhaustion  of  remedies  by  action  or  otherwise 
against  the  personal  representatives.  In  still  others  it  seems  that  the  heirs 
are  not  liable  to  actions  at  law  by  creditors,  and  the  remedy  of  the  latter 
against  the  realty  appears  to  be  confined  to  the  statutory  proceeding  for  a 
sale  in  the  court  having  jurisdiction  of  administrations."  10  Encyc.  PI.  & 
Pr.  2(3-30.  On  liability  under  the  Missouri  statute,  see  State  v.  Burnes,  129 
Mo.  App.  474,  107  S.  W.  1094  (1908).  It  seems  that  in  Arkansas  a  bona  fide 
purchaser  from  the  heirs  prior  to  suit  by  the  creditor  takes  free  from  the 
creditor's  claim,  but  the  heir  is  liable  for  the  proceeds  of  sale.  See  Cole  v. 
Hall.  85  Ark.  144,  107  S.  W.  17,5  (1908).  On  the  liability  of  heirs  for  the  an- 
cestor's debts,  see  112  Am.  St.  Rep.  1017,  note ;  48  Am.  Dec.  395,  note ;  21  L. 
R.  A.  89.  note;  10  Prob.  Rep.  Ann.  362,  note.  That  the  heir  is  not  liable 
for  covenants  on  which  the  ancestor  (a  mari'ied  woman)  could  not  be  held  is 
decided  in  Foster  v,  Wilcox,  10  R.  I.  443,  14  Am.  Rep.  698  (1873). 


Ch.3)      THE  LIABILITY  OF  HEIRS  FOR  THE  ANCESTOR'S  DEBTS. 


459 


LOWRY  V.  JACKSON  et  al. 
(Supreme  Court  of  South  Carolina,  1887.    27  S.  C.  318,  3  S.  E.  473.) 

McIvER,  J."  Inasmuch   as   the  questions   presented  by   this  appeal 
arise  under  a  demurrer,  a  brief  statement  of  the  pleadings  becomes 
necessary.     The  allegations  of  the  complaint  are  substantially  as  fol- 
lows:     (1)  That  said  Alexander  May  made  his  note  under  seal  to 
Alfred  M.  Lowry,  dated  twenty-ninth  of  December,  1859,  and  pay- 
able one  day  after  date,  for  the  sum  of  $18.91;    (2)  that  Alexander 
May  died  intestate  some  time  in  the  year  1860,  seised  and  possessed 
of  certain   real    estate,   and   that   letters    of   administration   upon   his 
estate  were   duly    committed   to   the    defendant   Jackson;     *     *      *  ■ 
(5)  that    said   Alexander   May   left   surviving   him,    as    his   heirs    at 
law,  his  widow,  Susannah,  and  his  two  children,  Peter  and  the  de- 
fendant Mary,  who  has  since  intermarried  with  the  defendant  Da- 
vid  T.   Redfearn;     (6)  that  some  time  in   the  year   1861,   the  said 
Peter  May  died  intestate,  leaving,  as  his  sole  heirs  at  law,  his  mother, 
Susannah,  and  his  sister,  the  defendant  Mary,  and  that  the  said  Su- 
sannah died  intestate  in  1875,  leaving  as  her  sole  heir  at  law  the  de- 
fendant ]\Iary,   and   administration   of   her  personal   estate   has   been 
duly  committed  to  the  defendant,  Mulloy;    (7)  that  the  land  of  which 
the  said  Alexander  May  died  seised  consisted  of  two  tracts— one  in 
the  state  of  North  Carolina,  and  the  other  in  South  Carolina,  Chester- 
field county,  of  which  a  particular  description  is  given,  and  that  the 
South  Carolina  tract  largely  exceeds  in  value  the  amount  now  due 
on  the  said  note,  and  that  there  never  has  been  any  partition  of  the 
same;    (8)  that,  after  the  death  of  said  Alexander  May,  his  above- 
named  heirs  at  law   held  and  occupied  the   said  land   as   tenants   in 
common  until  the  death  of  Peter,  when  the  same  was  held  in  common 
by  the  said  Susannah   and  the  defendant   Mary,   with  her  husband, 
until  the  death  of  said  Susannah,  since  which  time  it  has  been  in  the 
possession  of  the  defendants  Mary  H.  Redfearn  and  David  T.  Red- 
fearn;    (9)  that  Alfred  M.  Lowry  died  intestate  in  1877,  and  ad- 
ministration of  his  personal  estate  has  been  duly  committed  to  the 
plaintifif;    (10)  that  no  part  of  the  said  note  has  been  paid.     *     *     * 
Wherefore  the  plaintiff  demanded  judgment  against  the  said  Mary  PI. 
Redfearn,  and  her  husband,  David  T.  Redfearn,  (1)   for  the  amount 
due  on  said  note,  on  account  of  the  real  estate  descended  to  the  said 
Mary  and  now  in  the  possession  of  herself  and  husband;    (2)  that 
said  tract  of  land  be  sold,  and  the  proceeds  thereof  be  applied  to  such 
judgment,  and  the  costs  of  these  proceedings;  (3)  for  general  relief. 

To  this  complaint  the  defendants  Jackson,  as  administrator  as  afore- 
said, and  Redfearn  and  wife  filed  a  joint  demurrer,  upon  the  follow- 
ing grounds.     *     ♦     *     (3)  Because  "the  complaint  does  not  state 

6  Part  only  of  the  opinion  is  given. 


460  DESCENT.  (Part  2 

facts  sufficient  to  constitute  a  cause  of  action  against  these  defendants 
Mary  H.  Red  f earn  and  David  T.  Redfearn,  in  that  there  is  no  alle- 
gation of  any  promise,  undertaking,  contract,  agreement,  obligation, 
or  liability,  express  or  implied,  in  law  or  in  equity  to  pay  the  amount 
of  the  note  sued  upon.     *     *     *  " 

The  third  ground  of  demurrer  cannot  be  sustained.  In  an  action 
against  the  heir  for  the  debt  of  the  ancestor,  on  account  of  real  estate 
descended,  there  is  no  necessity  for  any  "allegation  of  any  promise, 
undertaking,  contract,  agreement,  obligation,  or  liability,  express  or 
implied,"  on  the  part  of  the  heir  to  pay  the  debt.  The  obligation  to 
do  so  does  not  arise  from  any  promise  or  undertaking,  either  express 
or  implied,  on  the  part  of  the  heir  to  pay  the  debt,  but  upon  the 
ground  that  he  is  in  possession,  as  heir,  of  certain  property  liable  for 
the  payment  of  the  debt.  This  conclusively  appears  from  the  fact 
that  his  liability  only  extends  to  the  value  of  the  property  descended, 
even  though  it  may  be  much  less  than  the  amount  of  the  debt;  where- 
as, if  his  liability  arose  from  any  promise  or  undertaking  to  pay  the 
debt,  it  would  extend  to  the  whole  amount  of  the  debt,  regardless  of 
the  value  of  the  property  which  he  took  by  descent.  As  to  the  absence 
of  any  allegation  of  any  "obligation  or  liability"  on  the  part  of  the 
Redfearns  to  pay  the  debt,  it  is  obvious  that  such  an  allegation  would 
be  a  mere  legal  conclusion  from  the  facts  stated,  and  therefore  not 
only  unnecessary  but  improper,  as  the  well  settled  rule  is  that  facts, 

and  not  legal  conclusions,  must  be  stated  in  pleadings  under  the  Code. 
*     *     * 

The  judgment  of  this  court  is  that  the  order  overruling  the  de- 
murrer be  affirmed,  with  leave  to  the  defendants  to  answer  within  20 
days  after  written  notice  to  their  attorneys  of  this  decision,  upon  pay- 
ment of  the  costs  which  had  accrued  up  to  the  date  of  said  order,  to 
be  taxed  by  the  clerk  of  the  court  of  common  pleas  for  Chesterfield 
county. 


Ch.  4)  BREAKING    DESCENT. 

CHAPTER  IV 
BREAKING  DESCENT 


461 


SECTION  1.— BY  DEED 


If  a  man  be  seised  of  lands  as  heire  of  the  part  of  his  mother,  and 
maketh  a  feoffment  in  fee,  and  taketh  backe  an  estate  to  him  and  to 
his  heires,  this  is  a  new  purchase,  and  if  he  dyeth  without  issue,  the 
heires  of  the  part  of  the  father  shall  first  inherite. 

Co.  Litt.  12  b.* 


KIHLKEN  V.  KIHLKEN  et  al. 

(Supreme  Court  of  Ohio,  1898.    59  Ohio  St.  106,  51  N.  E.  969.) 

MiNSHALL,  J.^  The  land  in  question  was  devised  to  Henry  Kihl- 
ken,  now  deceased,  by  his  father;  and  he  conveyed  it  to  his  brother 
John  in  1888,  on  a  written  agreement  that  it  was  to  be  reconveyed 
on  request.  There  was  no  real  consideration  for  the  conveyance,  but 
it  was  done  for  a  purpose  we  will  not  now  consider.  Before  his 
death,  Henry  made  the  request,  but  died  before  a  reconveyance  was 
made.  Thereupon  John  conveyed  the  land  to  Henry's  widow,  be- 
lieving at  the  time  that  under  the  trust  this  was  in  accordance  with 
his  duty.  This  presents  the  first  aspect  of  the  question  arising  upon 
the  facts  as  found.  The  claim  of  the  plaintiffs  below  is  that  by  reason 
of  the  fact  that  the  land  in  question  was  devised  to  Henry  by  his 
father,  and  that  Henry  died  without  issue,  it  should  descend  to  them 
as  ancestral  property,  under  section  4158,  Rev.  St.,  notwithstanding 
the  conveyance  to  John  and  by  John  to  Henry's  widow.  This  we 
think  is  erroneous.    Had  John,  as  requested,  conveyed  to  Henry  just 

1  "But  here  Lord  Coke  must  be  understood  to  speak  of  two  distinct  con- 
veyances in  fee ;  the  first  passing  the  use  as  well  as  the  possession  to  the  feof- 
fee, and  so  completely  divesting  the  feoffor  of  all  interest  in  the  land,  and  the 
second  regrantmg  the  estate  to  him.  For  if  in  the  first  feoffment  the  use  had 
been  expressly  limited  to  the  feoffor  and  his  heirs,  or  if  there  was  no  declara- 
tion of  uses  and  the  feoffment  was  not  on  such  a  consideration  as  to  raise  a 
nse  in  the  feoffee,  and  consequently  the  use  resulted  to  the  feoffor,  in  either 
case  he  is  in  of  his  ancient  use  and  not  by  purchase."  Hargrave  &  Butler's 
note.     See  Holme  v.  Shinn,  G2  N.  J.  Eq.  1,  6-8,  49  Atl.  151  (1901). 

2  The  statement  of  facts  is  omitted,  and  part  only  of  the  opinion  Is  given. 


462  DESCENT.  (Part  2 

before  his  death,  the  immediate  title  of  Henry  to  the  land  would  have 
been  the  deed  of  John,  and  not  the  devise  of  his  father. 

In  Brower  v.  Hunt,  18  Ohio  St.  311,  after  partition  had  been  made 
between  brothers  of  land  devised  to  them  by  their  father,  two  of 
them  (Jacob  and  Thomas)  exchanged  the  lands  each  had  received  in 
the  partition,  by  a  reciprocal  execution  of  deeds.  There  was  no  other 
consideration  received  by  either  for  his  conveyance  than  the  land 
received  from  the  other.  The  court  held  that  by  this  exchange,  the 
lands  lost  their  ancestral  character.  The  reasoning  is  stated  as  fol- 
lows by  White,  J. :  "The  title  mentioned  in  the  statute  is  the  title 
under  which  the  intestate  immediately  holds.  The  title  to  these  lands 
came  to  Thomas  by  deed  of  conveyance  from  Jacob,  and  the  charac- 
ter of  the  consideration  cannot  alter  the  fact,  and  make  that  a  title 
by  devise  from  the  ancestor  which  was  in  fact  a  title  by  deed  from 
Jacob."  It  is  true  that  in  partition,  though  effected  by  deeds,  it  is 
held  to  be  different,  because  partition  acts  only  on  the  possession,  and 
not  on  the  title.  Partition  does  not  change  the  character  of  the  title. 
Freeman  v.  Allen,  17  Ohio  St.  527;  Carter  v.  Day,  59  Ohio  St.  96, 
51  N.  E.  967,  69  Am.  St.  Rep.  757.^ 

We  are  unable  to  see  why  the  reasoning  in  Brower  v.  Hunt  does 
not  apply  with  equal  force  to  the  case  before  us.  Had  the  convey- 
ance been  made  by  John  to  Henry  in  his  lifetime,  as  requested,  he 
would  have  died  seised  of  them  as  nonancestral  lands,  under  the  deed, 
for  whatever  previous  equity  he  had  would  have  been  merged  in  the 
deed;  and  the  lands  would  have  descended  to  his  wife,  under  section 
4159,  Rev.  St.,  as  an  absolute  estate  in  fee  simple.    It  is  said  in  Stem- 


8  In  Carter  v.  Day,  59  Ohio  St.  96,  101,  51  N.  E.  967,  968.  69  Am.  St.  Rep. 
757  (1898),  the  court  said:  "A  partition  of  land  by  action,  the  authorities 
maintain,  creates  no  new  title  to  the  shares  set  off  to  the  parceners  in  sever- 
alty. While  its  effect  is  to  locate  the  share  of  each  in  his  allotted  parcel  of 
the  land,  and  extinguish  his  interest  in  all  the  others,  the  title  by  which  he 
holds  his  divided  share  is  the  same  as  that  by  which  his  undivided  interest  in 
the  estate  in  common  was  held.  Tabler  v.  Wiseman,  2  Ohio  St.  208;  McBain 
V.  McBain,  15  Ohio  St.  337,  86  Am.  Dec.  478.  The  effect  upon  the  title  is  dif- 
ferent where,  in  such  proceeding,  it  is  found  impracticable  to  divide  the  land 
among  the  tenants  in  common,  and  there  is  an  election  by  one  or  more  of 
them  to  take  the  land  or  some  parcel  of  it  at  the  valuation  returned  by  the 
appraisers.  The  grounds  of  the  distinction  are  satisfactorily  stated  in  Free- 
man V.  Allen,  17  Ohio  St.  527,  and  need  not  be  repeated  here.  But  no  satis- 
factory reason  can  be  assigned  why  partition  by  metes  and  bounds  among  ten- 
ants In  common,  by  the  interchange  of  mutual  releases,  where  each  one  re- 
ceives no  more  than  his  proper  share  of  the  land,  should  have  any  different 
effect  upon  the  title  from  that  of  a  like  partition  under  the  statute.  The 
former  is  a  convenient  and  less  expensive  mode  of  attaining  the  same  result, 
and  the  difference  is  in  the  method  only,  and  not  in  the  legal  consequences. 
The  latter  is  not  less  effectual  than  the  former  In  extinguishing  the  interest  of 
each  parcener  in  the  parcel  allotted  to  the  others,  and  in  transferring  to  each 
the  Interest  of  the  others  in  his  parcel.  The  controlling  fact  common  to  both 
Is  that  each  parcener  receives  in  severalty  no  greater  estate  than  he  before 
held  la  common."  See  Coukling  v.  Brown,  8  Abb.  Prac.  (N.  S.,  N.  Y.)  345 
(1S70). 


Ch.  4)  BREAKING    DESCENT. 


463 


bel  V.  Martin,  50  Ohio  St.  495,  525,  35  N.  E.  208,  213 :  "The  descent 
of  real  estate  is  controlled  by  the  legal  title,  and  when  the  legal  and 
equitable  title  unite  in  the  same  person  the  latter  becomes  merged 
in  the  former,  and  does  not  descend  separately.  The  legal  title  draws 
to  it  the  whole  estate,  and  carries  it  in  the  same  channel  of  descent 
as  if  the  equitable  estate  had  never  existed."  So,  in  Patterson  v. 
Lamson,  45  Ohio  St.  77,  12  N.  E.  531,  the  same  principle  was  ap- 
plied. There,  a  father,  desiring  to  make  an  advancement  to  his  daugh- 
ter on  the  eve  of  her  marriage,  purchased  a  tract  of  land,  paying  there- 
for $6,000,  and  caused  the  deed  to  be  made  directly  to  her.  On  her 
death  without  children,  the  land  was  held  to  be  nonancestral,  because 
the  immediate  title  under  which  she  held  the  land  was  the  deed  of  the 
person  from  whom  her  father  purchased  it.  Hence  John  did  not  mis- 
take his  duty  under  the  trust  when  he  conveyed  the  lands  to  Henry's 
wife;  for  it  was  his  duty  to  convey  them,  if  there  was  any  in  the 
premises,  to  the  person  that  would  have  inherited  them  had  the  re- 
conveyance been  made  to  Henry.  There  is  no  room  for  a  question 
of  good  faith  or  fraud  on  the  part  of  the  owner  of  ancestral  lands 
in  changing  their  character.  He  has,  during  life,  the  power  to  dis- 
pose of  them  as  he  pleases ;  and  it  is  only  where  he  does  not,  and  dies 
seised  of  them,  without  issue,  that  his  brothers  and  sisters  take  any 
estate  whatever  in  them.  They  simply  take  in  the  character  of  heirs, 
and  not  otherwise. 

In  Indiana  it  appears  that  the  surviving  wife  of  a  deceased  husband 
inherits  one-third  of  his  lands  in  fee  simple,  subject  to  the  provision 
that,  if  she  again  intermarries,  she  cannot,  during  such  marriage, 
alienate  them;  and,  if  she  dies  during  such  subsequent  marriage,  the 
lands  go  to  the  children  of  the  husband,  from  whom  the  lands  came. 
And  in  Nesbitt  v.  Trindle,  64  Ind.  183,  it  was  held  that  a  widow 
could  change  the  heritable  character  of  the  lands  descended  to  her 
from  her  deceased  husband  by  a  deed  made  without  consideration  to 
a  third  person,  who,  after  she  had  remarried,  reconveyed  to  her.  She, 
as  tlie  court  observed,  had  the  power,  before  her  remarriage,  to  dis- 
pose of  the  lands  as  she  pleased;  and  whether  she  did  so  for  a  con- 
sideration, or  not,  was  immaterial  to  the  rights  of  her  children  by  the 
former  husband,  from  whom  she  derived  title,  for  they,  as  heirs,  had 
no  vested  estate  in  the  lands  while  she  remained  a  ,widow. 

The  second  aspect  of  the  question  on  the  plaintififs'  right  to  recover 
arises  upon  the  fact  averred  in  the  answer  of  the  defendant,  and 
found  by  the  court  to  be  true,— that  the  deed  made  by  Henry  to  his 
brother  John  in  1888  was  made  for  the  fraudulent  purpose  of  hinder- 
ing and  delaying  one  Catherine  Miller  in  the  collection  of  any  judg- 
ment she  might  recover  against  him  in  a  contemplated  bastardy  pro- 
ceeding, and  was  accepted  by  John  to  assist  him  in  this  purpose.  This, 
we  think,  is  an  additional  reason  why  the  plaintiffs  below  are  not  en- 
titled to  recover.    It  is  too  well  settled  in  this  state  to  need  the  cita- 


464  DESCENT.  (Part  2 

tion  of  many  authorities,  that  neither  a  grantor  nor  his  heirs  can  have 
any  rehef  in  law  or  equity  for  the  recovery  of  lands  so  conveyed. 
Trimble  v.  Doty,  16  Ohio  St.  119;  Robinson  v.  Robinson,  17  Ohio 
St.  480;  Vanzant  v.  Davies,  6  Ohio  St.  52;  Barton  v.  Morris,  15 
Ohio,  408,  431;    Tremper  v.  Barton,  18  Ohio,  418,  422.     *     *     * 

Therefore,  judgment  reversed,  and  judgment  for  the  widow,  quiet- 
ing her  title. 


HIGGINS  v.  HIGGINS  et  al. 
(Supreme  Court  of  Ohio,  1897.    57  Ohio  St.  239,  48  N.  E.  943.) 

John  Higgins  verbally  agreed  with  his  son  James  to  sell  and  convey 
to  him  a  tract  of  land,  in  Wyandot  county,  containing  about  200  acres, 
for  the  sum  of  about  $6,000,  to  be  paid  by  James  to  his  father ;  and, 
upon  full  payment  being  made,  the  father  agreed  to  make  and  deliver 
to  the  son  a  deed  for  the  land.  Possession  was  delivered  to  the  son, 
and  he  made  valuable  and  lasting  improvements.  The  father  signed 
and  acknowledged  a  deed  to  James  for  the  lands,  but  retained  posses- 
sion thereof,  and  the  same  was  never  delivered,  and  it  was  not  in- 
tended to  be  delivered  until  the  balance  of  the  purchase  money  should 
be  paid.  James,  the  son,  died  intestate  in  1878,  still  owing  his  father 
$2,200  of  the  purchase  money.  James  left  surviving  him  Josephine 
H'iggins,  his  widow,  and  Darlton  Higgins,  then  an  infant,  his  only 
child  and  heir  at  law.  He  also  left  surviving  him  the  defendants  in 
error  Ransom  Higgins,  his  only  brother,  and  Lavina  Wonder,  his 
only  sister. 

After  the  death  of  James  Higgins,  the  guardian  of  his  son  Darlton 
brought  an  action  in  the  court  of  common  pleas  against  John  Higgins, 
the  father  of  James,  to  compel  a  conveyance  of  the  land  to  Darlton, 
and  the  court  found  that  there  was  still  due  and  unpaid  the  sum  of 
$2,200  of  the  purchase  money,  and  "ordered  and  adjudged  that  within 
10  days  from  the  rising  of  this  court  the  said  John  Higgins  convey 
said  real  estate  to  the  said  Darlton  Higgins  in  fee  simple,  subject  to 
said  dower  estate,  by  a  good  and  sufficient  deed,  and  that,  in  default 
thereof,  this  decree  operate  as  such  conveyance,  and  that  within  30 
days  from  the  rising  of  this  court  the  said  plaintiff  pay  the  said  John 
Pliggins  the  said  sum  of  $2,200,  and  interest  thereon  from  the  date 
of  this  decree,"  and  awarded  execution.  The  guardian  of  Darlton 
Higgins  sold  40  acres  of  the  land  under  proceedings  in  the  probate 
court,  and  out  of  the  proceeds  of  the  sale  paid  John  Higgins  the 
remainder  of  the  purchase  money,  $2,200,  and  interest;  but  John, 
the  grandfather  of  Darlton,  never  conveyed  the  land  by  deed,  but  al- 
lowed the  decree  of  the  court  to  operate  as  a  conveyance  of  the  land. 
In  the  year  1890,  Darlton  Higgins  died  intestate,  leaving  surviving 
him  his  mother,  Josephine  Higgins,  but  no  widow,  child,  brother,  or 


Ch.  4)  BREAKING    DESCENT.  465 

sister,  either  of  the  whole  or  half  blood.  His  mother  remained  in 
possession  of  the  premises,  and  claims  that  the  lands  came  to  Darlton 
by  purchase,  and  ascended  to  and  vested  in  her  at  his  death,  under 
the  statute  of  descents;  and  she  brought  her  action  against  the  de- 
f  endaftts  in  error  to  quiet  her  title. 

The  defendants  in  error,  the  brother  and  sister  of  James  Higgins, 
deceased,  claim  that  the  lands  came  to  Darlton  Higgins  by  descent 
from  his  father,  James  Higgins,  deceased,  and  that  Josephine,  the 
widow  of  James,  has  only  a  life  estate  in  the  lands,  and  that  after 
her  death  the  lands  will  belong  to  the  defendants  in  error  in  fee, 
under  the  statute  of  descents.  The  circuit  court,  on  appeal,  found  in 
favor  of  the  defendants  in  error,  and  quieted  the  title  in  them,  sub- 
ject to  the  life  estate  of  Josephine.  Thereupon  Josephine  filed  her  pe- 
tition in  error  in  this  court,  seeking  to  reverse  the  judgment  of  the 
circuit  court. 

BuRKET,  C.  J.  (after  stating  the  facts).  It  is  urged  in  behalf  of 
defendants  in  error  that  under  section  4158,  Rev.  St.,  the  rights  of 
James,  whether  legal  or  equitable,  descended  to  his  son  Darlton. 
This  is  true,  but  James  had  only  an  equity ;  the  legal  title  remained  in 
his  father,  John.  It  is  also  urged  that  John  made  a  deed  to  James 
for  the  lands,  and  retained  the  same  undelivered,  as  a  security  for  the 
unpaid  purchase  money.  This  is  conceded,  but  the  fact  still  remains 
that  by  retaining  the  undelivered  deed  he  thereby  retained  the  legal 
title  to  the  lands  in  himself,  and  the  guardian  of  Darlton  had  to  pay 
$2,200  to  obtain  the  legal  title  from  John,  and,  upon  paying  that  sum, 
the  legal  title  passed  from  John,  not  by  virtue  of  the  undelivered  deed, 
but  by  operation  of  the  decree  of  the  court,  and  thereby  the  legal  title 
vested  in  Darlton  by  purchase,  and  not  by  descent. 

As  to  John  Higgins,  it  must  be  perfectly  clear  that  he  parted  with 
the  legal  title  to  the  lands  by  a  sale  thereof,  and  not  by  casting  the 
title  by  descent  on  another;  and  it  is  equally  clear  that,  if  John  parted 
with  the  legal  title  by  sale,  Darlton  acquired  the  legal  title  by  purchase. 
The  legal  title  passing  from  John  to  Darlton  could  not  go  from  John 
by  sale,  and  be  received  by  Darlton  by  descent.  Being  a  sale  of  the 
legal  title  by  John,  it  was  a  purchase  by  Darlton,  and  Darlton  Hig- 
gins therefore  received  the  legal  title  by  purchase,  and  not  by  descent. 
True,  he  inherited  from  his  father  whatever  equity  the  father  had 
in  the  lands,  but,  in  determining  questions  as  to  whether  lands  came 
by  purchase  or  descent,  regard  is  had  to  the  legal  title  alone,  unin- 
fluenced by  considerations  of  equity.  Patterson  v.  Lamson,  45  Ohio 
St.  77,  12  N.  E.  531 ;  Stembel  v.  IMartin,  50  Ohio  St.  495,  35  N.  E. 
208. 

The  controlling  facts  of  this  case  are  conceded  by  the  parties,  ana 

in  such  cases,  upon  a  reversal,  this  court  may  proceed,  and  render  such 

judgment  as  the  circuit  court  should  have  rendered.     Minnear  v.  Hal- 

loway,  56  Ohio  St.  148,  46  N.  E.  636.     The  circuit  court  erred  in 

Cost.  Wills— 30 


466  DESCENT.  (Part  2 

applying  the  law  to  the  conceded  facts,  and  its  judgment  is  therefore 
reversed,  and  a  decree  entered  in  favor  of  the  plaintiff  in  error,  quiet- 
ing her  title  to  said  lands  in  fee  simple.    Judgment  accordingly.* 


SECTION  2.— BY  DEVISE 


EMERSON  V.  INCHBIRD. 

(Court  of  King's  Bench,  1701.    I  Ld.  Raym.  728.) 

In  debt  upon  bond  brought  against  the  defendant  as  heir  to  his  fa- 
ther, etc.,  riens  per  descent,  pleaded,  the  plaintiff  replied  assets,  and 
issue  thereupon.  And  the  evidence  was,  that  the  obligor,  the  defend- 
ant's father,  devised  to  the  defendant  his  son  and  heir  certain  mes- 
suages in  Exchequer  Alley  in  fee,  but  chargeable  with  an  annuity  or 
rent  charge  payable  to  the  defendant's  mother.  And  it  was  held  by 
Holt,  Chief  Justice,  that  these  messuages  descended  to  the  defendant, 
and  were  assets.  For  (by  him)  the  difference  is,  where  the  devise 
makes  an  alteration  of  the  limitation  of  the  estate,  from  that  which 
the  law  would  make  by  descent;  and  where  the  devise  conveys  the 
same  estate,  as  the  law  would  make  by  descent;  but  charges  it  with 
incumbrances.  In  the  former  case  the  heir  takes  by  purchase,  in  the 
latter  by  descent.     Trin.  13  Wm.  Ill,  B.  R.,  Guildhall,  London.^ 

*  That  an  election  to  take  as  real  estate  property  converted  in  equity  into 
personalty  operates  as  a  new  acquisition  and  breaks  descent,  was  held  in 
Burr  V.  Sim,  1  Whart.  (Pa.)  2.52,  29  Am.  Dec.  48  (183G). 

Compare,  however,  Cross  v.  Benson,  68  Kan.  495,  75  Pac.  558,  64  L.  R.  A. 
560  (1904),  where  a  widow  who  elected  to  take  the  family  residence  under  her 
husband's  will  was  held  not  to  lose  thereby  her  constitutional  right  to  have 
the  husband's  homestead  exemption  from  forced  sale  under  any  process  last 
as  long  as  family  occupation  as  a  residence  persisted.  The  question  arose  he- 
cause  by  the  state  statute  the  right  to  devise  was  "subject  nevertheless  to  the 
rights  of  creditors." 

0  See  Kinney  v.  Glasgow,  53  Pa.  141  (1866),  where  one  of  several  heirs  was 
given  by  devise  the  whole  property  and  yet  was  held  to  take  the  whole  by 
descent  under  the  state  statute.  But  in  Rice  v.  Burkhart,  130  Iowa,  .520.  107 
N.  W.  308  (1906),  a  devise  of  the  whole  homestead  to  one  of  five  sons  was  held 
to  pass  the  property  under  the  will,  and  not  by  descent.  In  Thomi)son  v. 
Turner  (Ind.)  89  N.  E.  314  (1909),  a  widow  was  held  to  take  by  descent  and 
not  by  devise. 

On  whether  heirs  take  by  descent  or  by  purchase  under  a  will,  see  13  Prob. 
R-ep.  Ann.  412,  note. 


Ch.  4)  BREAKING    DESCENT. 


467 


BIEDERMANv.  SEYMOUR. 

(High  Court  of  Chancery,  1S41.    3  Beav.  3G8.) 

The  Master  of  the  Rolls  [Lord  Langdale].*  In  this  case  the 
question' reserved  was,  whether  the  real  estate  which  the  testator  de- 
vised to  his  heir  at  law,  is  to  be  taken  as  real  assets,  for  payment  of 
dehts,  in  priority  to  real  estates,  by  the  same  will  devised  to  other 
persons. 

The  devise  to  the  heir  is  made  subject  to  the  payment  of  an  annuity 
of  i50  to  the  testator's  sister  during  her  Hfe,  and  after  her  death  to 
the  payment  of  £1,000  to  her  two  children. 

Notwithstanding  the  devise,  and  notwithstanding  the  charges,  the 
heir  takes  by  descent.  Chaplin  v.  Leroux,  5  M.  &  S.  14  [and  see 
Fearne's  Posthumous  Works,  229].  For  the  purpose  of  making  him 
take  otherwise  than  by  descent,  the  devise  is  said  to  be  void;  and  it 
IS  argued  for  the  defendants  that  the  devise  is  void  for  all  purposes, 
that  no  intention  can  be  applied  to  it,  that  the  attempted  devise  must 
be  treated  as  a  mere  nullity,  and  the  estate  therein  comprised  be  con- 
sidered merely  as  descended  estates,  and  therefore  as  assets  to  be 
applied  for  the  payment  of  debts,  in  priority  to  estates  effectually 
devised. 

But  whatever  may  be  the  origin  of  the  rule,  which  gives  to  the  heir 
by  descent,  that  which  the  testator  has  intended  to  devise,  whether  the 
rule  be  derived  from  the  supposed  application  of  a  principle  that  a 
man  shall  not  have  by  gift  that  which  is  his  own  without  gift,  as  some 
have  supposed,  or  whether  the  rule  be  adopted  for  the  benefit  of  third 
persons,  as  of  the  lord  for  the  preservation  of  tenure,  or  of  creditors 
for  the  payment  of  their  debts,  or  simply,  as  Mr.  Justice  Bayley  said 
■  in  Chaplin  v.  Leroux,  because  it  is  convenient  that  the  property  should 
be  assets  in  the  hands  of  the  heir,  there  seems  to  be  no  reason,  why, 
as  against  the  heir,  the  rule  should  be  extended  further  than  the  prin- 
ciple requires. 

It  cannot  be  said  of  estates  expressed  to  be  devised  to  the  heir,  as 
of  estates  not  mentioned  in  the  will,  that  they  are  "quite  out  of  the 
scope  of  the  testator's  intention,  perfectly  beside  and  independent  of 
it"  (2  Bro.  C.  C.  262);  it  is  indeed  clear  that  an  estate  which  the  tes- 
tator says  he  devised  to  the  heir,  is  within  the  testator's  intention,  and 
meant  to  be  a  benefit  to  the  heir.  There  is  nothing  illegal  in  that  in- 
tention, and  if  the  rule  be  founded  on  the  regard  due  to  third  persons, 
as  creditors  or  otherwise,  there  seems  no  reason  for  its  application 
between  the  heir  and  other  objects  of  the  testator's  bounty;  and  if 
the  effect  of  the  devise  be  to  procure  for  the  heir  a  contribution  from 
the  other  devised  estates  towards  payment  of  debts,  which  would 
otherwise  have  had  to  be  borne  by  descended  estates  alone,  it  cannot 

«  The  statement  of  facts  is  omitted. 


468  DESCENT.  (Part  2 

be  said  that  the  heir  obtains  by  gift  something  which  was  his  own. 
without  gift. 

Courts  of  justice  ought  to  carry  into  efTect  the  intentions  of  testa- 
tors as  far  as  they  can  consistently  with  the  rules  of  law;  and  in  this 
case,  although  the  rule  of  law  makes  the  devised  estates  assets  in  the 
hands  of  the  heir,  and  the  creditors  may,  therefore,  resort  to  this  es- 
tate in  priority  to  others,  and  without  being  embarrassed  with  the 
necessity  of  seeking  contribution  from  other  devisees ;  yet,  as  it  ap- 
pears by  the  expressions  which  the  testator  has  used,  to  have  been  his 
intention  that  the  devisee,  who  is  heir,  should  partake  of  his  bounty 
as  well  as  other  devisees,  there  seems  to  be  no  reason  why,  without 
prejudice  to  the  claims  of  creditors  or  others,  the  heir  should  not 
enjoy  the  like  benefit  which  is  given  to  other  devisees,  or  why  those 
who  claim  under  the  will,  and  do  not  appear  to  be  more  objects  of  the 
testator's  bounty,  should  be  permitted  to  defeat  the  expressed  inten- 
tion in  favor  of  the  heir. 

I  do  not  think  that  the  testator's  intention  can  be  excluded  from  the 
consideration  of  this  question.  The  intention  is  not  to  prevail  against 
the  rule  of  law  for  the  benefit  of  third  persons.  A  testator  cannot,  as 
against  creditors,  exempt  his  personal  estate  from  payment  of  his 
debts,  or  prevent  his  real  estates  from  being  assets,  by  devising  them 
to  his  heir;  but  we  may  collect  from  his  will  an  intention,  that,  as 
amongst  those  claiming  under  the  will,  the  personal  estate,  or  any 
portion  of  the  real  estate,  shall  be  exonerated;  and  if  there  be  an 
equal  intention  to  give  to  devisees  named,  and  the  gift  must  be  en- 
croached upon  by  the  Hability  of  the  subjects  of  them  to  pay  debts, 
I  think  the  doctrine  that  the  heir,  who  is  devisee,  shall  take  by  de- 
scent, does  not  afford  a  sufficient  reason  for  saying,  that  the  burden 
of  the  debts  should  not  be  borne  ratably  by  the  devisees,  although  one 
of  them  is  heir ,  and  I  am  of  opinion  that  although  the  creditors  have 
a  right  to  resort  to  the  estate  devised  to  the  heir,  in  priority  to  the 
other  devised  estates,  yet  that  the  heir  will  be  entitled  to  contribution 
from  the  other  devisees  to  the  extent  in  which  his  estate  may  be  ex- 
hausted by  debts. 


DAVIS  V.   KIRK. 

(High  Coiirt  of  Chancery,  1855.    2  K.  &  J.  391.) 

William  Harding,  by  his  will,  dated  in  1845,  gave  and  devised  all 
his  freehold  and  copyhold  estates  to  Anthony  Davis,  his  heirs  and  as- 
signs, to  hold  the  same  unto  and  to  the  use  of  the  said  Anthony  Davis, 
his  heirs  and  assigns,  upon  trust  to  sell  all  those  three  closes  therein 
specifically  described,  and  to  stand  possessed  of  the  moneys  to  arise 
from  such  sale,  upon  trust  to  pay  all  the  said  testator's  debts,  funeral 
and  testamentary  expenses;  and  in  the  next  place  to  pay  the  residue 
thereof  to  the  said  testator's  wife,  Ann  Harding;    and  as  to  all  the 


Ch.  4)  BREAKING    DESCENT.  469 

rest  residue,  and  remainder  of  the  said  testator's  real  estate  therein- 
before given  and  devised  to  his  said  trustee,  upon  trust  to  pay  the 
rents  and  profits  thereof  unto  the  said  Ann  Harding  for  her  life; 
and,  after  her  decease,  upon  trust  to  convey  the  said  residue  of  his 
the  said  testator's  real  estate  unto  such  person  as  should  answer  the 
description  of  his  heir  at  law;  and  the  said  testator  appointed  the 
said  Anthony  Davis  executor  of  his  said  will. 

The  testator  died  shortly  after  the  date  of  his  will,  and  the  said  Ann 
Harding,  his  widow,  died  in  1853, 

At  the  time  of  his  death,  the  testator  William  Harding  was  seised 
in  fee  of  copyhold  lands  besides  those  mentioned  in  the  will,  which 
had  descended  to  him  ex  parte  materna,  and  these  were  now  claimed 
by  his  heir  at  law,  and  also  adversely  by  his  heir  ex  parte  materna. 

Vice  Chancellor  Sir  W.  Page  Wood.  I  do  not  think  that  there  is 
any  doubt  about  this  case.  I  have  been  looking  at  the  case  of  Harris 
v.  The  Bishop  of  Lincoln,  2  P.  Wms.  135.  The  report  of  it  is  in  the 
shape  of  an  argument  between  the  bar  and  the  court,  counsel  making 
an  observation  and  the  court  answering  it.  I  find  there  "it  was  ob- 
jected, that,  if  the  will  should  be  construed  in  such  manner  as  to  en- 
title the  heir  of  the  mother's  mother  to  the  estate,  such  will  would  be 
void  and  nugatory,  and  the  testator  all  this  while  would  be  doing  of 
nothing,  because,  without  any  will,  the  premises  would  go  to  the  heir 
of  the  mother's  mother,  who  was  the  heir  at  law  to  this  estate,  the 
heir  of  the  mother's  father  having  none  of  the  blood  of  the  first  pur- 
chaser. To  which  the  court  said,  that  the  testator  giving  by  his  will 
several  annuities  and  charities,  and  then  saying  that  the  residue  of 
the  profits  should  go  to  the  right  heirs  of  the  mother's  side,  it  was 
the  same  thing  as  if  he  had  said,  'so  far  I  dispose  of  my  estate,  and 
let  so  much  of  it  go  from  my  heir  who  otherwise  would  have  had  it, 
but  I  will  not  dispose  of  it  any  further  from  the  heirs  at  law  of  the 
mother's  side,  whence  it  came,  and  where  it  would  go  in  case  I  should 
not  give  it  away.' "  In  other  words,  the  court  treated  it  as  not  being 
a  devise  at  all,  but  considered  that  the  heir  took  by  his  better  title; 
and  that  was  the  principle  of  the  decision. 

I  think  that  the  answer  to  the  case  of  Godbold  v.  Freestone,  3  Lev. 
406,  which  is  the  only  case  that  touches  this,  is,  that  the  use  is  the  old 
use.  Here  the  devise  is  an  express  devise,  which  vested  the  whole  fee 
simple  in  the  trustees,  and  gave  it  away  from  the  heir.  The  whole 
estate  is  devised  away  from  the  heir,  and  the  trustees  are  left  to  deal 
with  the  legal  fee  simple,  and  to  convey  it  to  such  person  as  should 
answer  the  description  of  the  testator's  heir  at  law.  The  expression 
"heir  at  law"  is  somewhat  strong;  but,  independently  of  that,  the 
fact  of  the  testator  having  devested  the  inheritable  quality  of  the  es- 
tate by  breaking  the  descent  entirely,  and  giving  the  estate  to  the  trus- 
tees, and  leaving  them  to  find  out  the  heir,  has  put  them  under  an 
obligation  to  look  upon  the  heir  as  a  persona  designata,  and  they  can- 
not regard  the  inheritable  quality  of  the  estate,  but  they  must  find  out 


470  DESCENT.  (Part  2 

the  person  who  answers  the  description  of  heir  at  law  of  the  testator. 
I  think  that  there  is  not  any  authority  precisely  in  point;  but  the 
principle  must  be,  that,  when  once  the  descent  is  broken  by  a  devise 
of  the  whole  fee  simple  to  trustees,  upon  trust  to  convey  it  to  the  tes- 
tator's heir,  they  are  bound  to  convey  it  to  the  person  who  is  heir  of 
the  testator  according  to  the  common  law. 


ELLIS  V.  PAGE. 
(Supreme  Judicial  Court  of  Massachusetts,  1851.     7  Cush.  161.) 

BiGELOW,  J.  This  is  a  bill  in  equity  in  the  nature  of  a  bill  of  inter- 
pleader, brought  by  the  executors  of  the  last  will  and  testament  of 
Ephraim  Marsh,  against  sundry  persons,  legatees  and  heirs  at  law 
of  said  Marsh. 

The  facts,  as  they  appear  by  the  bill,  answers  and  documents  in 
the  case,  are  substantially  as  follows :  Ephraim  Marsh,  the  testator, 
died  in  the  year  1837,  leaving  a  will  and  codicil,  which  were  duly  ap- 
proved and  allowed,  March  22,  1847.  In  and  by  said  will,  he  devised 
a  part  of  his  real  estate,  in  different  proportions,  to  his  children  and 
other  relations  in  fee,  and  a  part  to  his  executors,  in  trust  for  his 
children  and  other  persons.  Among  that  part  of  his  real  estate  de- 
vised in  trust,  were  four  dwelling  houses  in  Fayette,  and  two  lots  of 
land  in  Knox  street,  in  Boston,  which  were  given  to  said  trustees 
"their  heirs  and  assigns  forever,  in  trust  to  pay  over  the  net  rents 
and  income  thereof  to"  his  "son  Charles  Marsh  during  his  life,  and, 
on  his  decease,  to  convey  in  fee,  and  pay  to  his  children  said  houses 
and  lots,  or  the  proceeds  thereof,  in  case  they  have  been  sold ;  and 
in  default  of  such  children,  to  convey  and  pay  the  same  to  his  heirs 
at  law."  The  trr.stees  had  full  power,  by  the  will,  to  sell  at  their  dis- 
cretion any  of  the  real  estate  devised  to  them  in  trust  for  said  Charles 
Marsh,  but  no  sale  had  been  made  by  them  of  any  part  of  it  at  the 
time  of  the  death  of  Charles  Marsh,  the  cestui  que  trust,  which  took 
place  in  August,  1849,  he  leaving  no  issue.  The  testator  also  gave 
to  sundry  persons  pecuniary  legacies,  amounting  in  all  to  $15,400,  none 
of  which  have  been  paid  by  the  executors.  The  personal  estate  of 
the  testator  falls  short  of  paying  debts  and  legacies,  in  the  sum  of 
about  $2,200.  The  bill  further  states  that,  in  order  to  settle  the  es- 
tate, it  is  requisite,  either  that  said  legacies,  should  be  proportionably 
abated,  or  that  the  real  estate  devised  to  said  trustees,  in  trust  for 
said  Charles  Marsh  for  life,  and  on  his  decease  without  children  to 
be  conveyed  in  fee  to  the  heirs  at  law,  should  be  sold,  and  the  pro- 
ceeds applied,  so  far  as  may  be  necessary,  to  the  payment  of  said 
legacies  in  full. 

The  bill  prays  that  said  legatees  and  heirs  at  law  may  interplead 
and  settle  their  rights  to  said  estate,  under  the  direction  of  the  court, 


Ch.  4)  BREAKING    DESCENT.  4:71 

and  that  the  executors  may  be  advised  how  to  proceed  in  the  settle- 
ment thereof. 

The  question,  whether  the  real  estate  devised  to  said  trustees,  by 
the  clause  of  the  will  above  cited,  can  be  sold  to  make  up  the  defi- 
ciency of  personal  estate  and  to  pay  the  legacies  in  full,  depends  on 
the  construction  to  be  given  to  that  part  of  the  will.  If  it  is  to  be 
considered  as  a  specific  devise  to  the  heirs  at  law,  after  the  death  of 
Charles  Marsh,  so  that  they  take  by  the  will,  then  it  is  very  clear,  that 
it  cannot  be  sold  to  pay  legacies,  for  the  reason  that  lands,  specifically 
devised,  are  not  subject  to  be  sold  for  the  payment  of  specific  legacies. 
Scott  V.  Scott,  1  Eden,  458,  461;  Hubbell  v.  Hubbell,  9  Pick.  561. 
See,  also,  Hays  v.  Jackson,  6  Mass.  151.  But  if  the  heirs  at  law  do 
not  take  under  the  will  by  purchase,  but  take  by  descent  as  heirs,  then 
so  much  of  the  real  estate  as  is  included  in  this  devise  would  come 
within  the  provision  of  Rev.  St.  c.  71,  §  20,  and  may  be  sold  as  un- 
devised real  estate,  for  the  payment  of  said  legacies. 

It  is  a  well-settled  rule  of  real  property  that  a  limitation  to  an  heir 
in  a  devise  is  void,  and  that  the  heir  cannot  be  a  purchaser. ^  Co.  Lit. 
22b.  Or,  to  state  the  rule  more  fully,  if  a  man  devises  by  his  will  his 
land  to  his  heir  at  law  and  his  heirs,  in  such  case  the  devise,  as  such, 
is  void,  and  the  heir  will  take  by  descent  and  not  by  purchase,  for 
the  reason  that  the  title  by  descent  is  the  worthier  and  better  title,  by 
taking  away  the  entry  of  those  who  might  have  a  right  to  the  land. 
Powell  on  Devises,  427,  430;  6  Cruise  (Greenl.  Ed.)  151;  1  Jarman 
on  Wills,  67.  And  it  makes  no  diiTerence,  as  to  the  operation  of  this 
rule,  that  the  land  comes  to  the  heir  charged  with  payment  of  annui- 
ties'or  legacies,  nor  that  the  testator  devises  the  land  to  one  for  life, 
remainder  to  his  heir  at  law  in  fee,  in  which  latter  case  the  heir  is  in, 
on  the  termination  of  the  life  estate,  by  descent  and  not  by  purchase. 
So,  too,  it  has  been  held,  that  the  limitation  to  the  heir,  by  devise  in 
fee,  after  an  estate  tail,  or  the  ingrafting  of  an  executory  devise,  or 
the'  carving  out  of  a  contingent  interest,  or  the  limiting  of  the  re- 
version in  fee,  or  the  alternate  fee,  to  the  heir  at  law,  will  not  break 
the  descent,  and  that  when  the  estate  devolves  to  the  heir,  he  takes 
by  descent  and  not  by  purchase.  Powell  on  Devises,  427,  430;  1 
Jarman  on  Wills,  67;  Fearne's  Post.  Works,  128,  229;  1  Eden,  462, 
note;    Doe  v.  Timins,  1  B.  &  Aid.  530;    Manbridge  v.  Plummer,  2 

Myl.  &  K.  93. 

This  rule  of  law,  established  in  England  by  a  long  series  of  ju- 
dicial decisions,  was  altered  by  statute  of  3  &  4  William  IV,  c.  106.* 
But  it  has  been  fully  recognized  as  the  common  law  of  this  state,  and 
has  not  been  changed  by  statute.  Parsons  v.  Winslow,  6  Mass.  178, 
4  Am.  Dec.  107 ;  Whitney  v.  Whitney,  14  Mass.  90. 

There  would  have  been  no  difficulty  in  the  application  of  this  rule 
to  the  devise  in  question,  if  the  estate  had  been  given  to  the  trustees 

*  Oil  the  English  statute,  see  Owen  v.  Gibbons,  [1902]  1  Ch.  G36. 


472  DESCENT.  (Part  2 

for  the  life  of  Charles  Marsh,  and,  on  his  decease  without  issue,  then' 
in  fee  to  the  heirs  at  law.  It  would  then  have  come  within  the  letter 
of  the  rule.  But  the  devise  in  this  case  was  to  the  trustees  and  their 
heirs,  who,  on  the  death  of  the  cestui  que  trust  without  children,  are 
to  convey  the  estate  in  fee  to  the  heirs  at  law.  Does  this  so  change 
the  estate  which  the  heirs  take,  or  so  break  the  descent,  that  the  rule 
is  inapplicable  to  this  devise  ?  In  considering  this  question,  it  is  to 
be  remembered  that  one  of  the  great  tests,  by  which  to  try  the  ap- 
plication of  the  rule,  is  to  ascertain  whether  the  tenure  or  quality  of 
the  estate  which  the  heirs  take  is  changed  by  the  devise ;  i.  e.,  whether 
they  take  an  estate  different  in  quantity  or  quality  from  that  which 
they  would  have  taken  if  the  estate  had  not  been  devised,  but  had 
been  left  to  descend  to  them.  Fearne's  Post.  Works,  229.  Apply  this 
test  to  the  estate  which  the  heirs  at  law  take  in  this  case  on  the  death 
of  Charles  Marsh  without  issue.  They  take  a  fee  simple,  precisely 
what  they  would  have  taken,  if  no  will  had  been  made.  Perhaps  a 
clearer  test  is  given  by  Chancellor  Kent,  who  says:  "Strike  out  the 
particular  devise  to  the  heir,  and  if,  without  that,  he  would  take  by 
descent  exactly  the  same  estate  which  the  devise  purports  to  give 
him,  he  is  in  by  descent  and  not  by  purchase."  4  Kent,  Com.  (6th 
Ed.)  507.  Now  it  is  very  clear,  that,  on  the  conveyance  by  the  trus- 
tees of  the  estate  in  question  to  the  heirs  at  law  in  fee,  as  provided 
by  the  will,  the  heirs  will  take  exactly  what  they  would  have  taken 
if  no  will  had  been  made. 

On  looking  into  the  will,  it  is  manifest  that  the  testator  intended, 
in  case  Charles  Marsh  died  without  issue,  his  heirs  at  law  should  at 
once  take  the  estate  in  question  equally  in  fee.  But  as  it  might  be- 
come necessary,  during  the  life  of  the  cestui  que  trust,  to  sell  some 
portion  or  all  of  the  real  estates  devised  in  trust,  the  testator  gave  to 
the  trustees  a  power  to  sell  at  their  discretion,  directing  them,  on 
the  death  of  the  cestui  que  trust,  "if  the  estates  shall  have  been  sold," 
to  pay  the  proceeds  to  the  heirs  at  law,  otherwise  to  convey  to  them 
in  fee.  The  main  purpose  in  devising  the  estates  to  the  trustees  and 
their  heirs  was  to  enable  them  to  execute  this  power  of  sale,  if  neces- 
sary, and  convey  a  good  title  to  the  premises.  As  this  power  of  sale 
was  not  exercised  by  the  trustees  during  the  life  of  Charles  Marsh,  as 
it  was  to  have  been,  if  exercised  at  all,  it  would  not  perhaps  be  a  very 
forced  construction  to  say  that,  after  his  death,  the  devise  came  within 
those  cases  where  it  has  been  held  that  a  devise  to  trustees  and  their 
heirs  may  be  construed  so  as  to  vest  only  a  life  estate  in  the  trustees. 
Doc  V.  Plicks,  7  T.  R.  433 ;   Curtis  v.  Price,  12  Ves.  89. 

But  without  deciding  this  point,  and  assuming  that,  on  the  death 
of  Charles  Marsh  without  issue,  the  legal  estate  was  still  in  said 
trustees,  yet  they  held  it  only  to  convey  it  in  fee  to  the  heirs  at  law. 
The  main  purpose  of  the  devise  in  trust  had  been  accomplished.  The 
heirs  have  the  entire  absolute  interest  in  the  estate,  and  can  compel 
the  trustees  to  convey  the  legal  estate  to  them.     1  Cruise  (Greenl. 


Cll.  4)  BREAKING    DESCENT.  473 

Ed.)  418.  The  result  is,  therefore,  the  same  as  it  would  have  been 
if  the  estate  of  the  trustees  had  only  been  an  estate  pour  autre  vie 
remainder  to  the  heirs  at  law  in  fee.  The  equitable  estate  being  thus 
vested  in  the  heirs  at  law  with  a  right  to  an  immediate  conveyance  of 
the  legal  estate  in  fee,  we  see  no  good  reason  why  it  should  not  be 
subject  to  all  the  legal  incidents  to  which  it  would  have  been  liable,  if 
both  the  legal  and  equitable  estates  had  been  directly  vested  in  the 
heirs  at  law  by  the  terms  of  the  devise.  It  has  been  often  held  to  be 
of  the  utmost  importance  to  preserve  a  strict  analogy  between  legal 
and  equitable  estates,  in  all  respects,  for  the  reason  that  it  would  de- 
stroy the  whole  harmony  of  the  laws  of  real  property,  if  the  legal  es- 
tate was  subject  to  one  set  of  rules  and  the  equitable  estate  to  another. 
Wykham  v.  Wykham,  18  Ves.  423,  note.  A  fortiori  is  this  important 
and  necessary,  when  the  entire  equitable  estate  is  in  the  same  persons 
who  have  also  the  immediate  right  to  the  legal  estate. 

On  these  principles,  we  think  the  real  estates  included  in  this  devise 
cannot  be  considered  as  lands  specifically  devised  by  the  will,  but  that 
they  fall  within  the  provisions  of  Rev.  St.  c.  71,  §  20,  and  are  liable 
to  be  sold  for  the  payment  of  legacies.  This  conclusion,  we  are  satis- 
fied, carries  out  the  intent  of  the  testator,  while  at  the  same  time  it 
conforms  to  the  rules  of  law.    Decree  accordingly. '^ 

T  "In  Ellis  V.  Page,  7  Cush.  161  (1851),  land  was  devised  to  trustees  on  cer- 
tain trusts,  and  on  failure  of  these  trusts  in  trust  to  convey  the  land  to  the 
testator's  heirs  at  law.  The  trusts  failed,  and  it  was  held  that  the  heirs  took 
by  descent,  and  not  by  devise,  and  that  therefore,  under  a  Massachusetts  stat- 
ute, the  land  could  be  sold  to  pay  legacies.  The  decision,  it  is  submitted,  is 
unsound:  (1)  Because  the  devise  of  the  legal  estate  to  the  trustees  broke  the 
descent  (Davis  v.  Kirk,  ante  [2  K.  &  J.  391]) ;  (2)  because,  even  if  the  devise 
had  been  to  the  heirs  directly,  the  doctrine  of  Biederman  v.  Seymour,  ante  [3 
Beav.  368],  Is  good  sense  and  good  law."  4  Gray's  Cases  on  Property  (2d 
Ed.)  29. 


474  DESCENT.  (Part  2 

CHAPTER  V 
SHIFTING  DESCENTS 


SECTION  1.— POSTHUMOUS  CHILDREN 


HARPER  V.  ARCHER. 

(High  Court  of  Errors  and  Appeals  of  Mississippi,  1845.    4  Smedes  &  M.  99, 

43  Am.  Dec.  472.) 

Mr.  Justice  Clayton.^  This  cause  will  have  to  be  dismissed  on  ac- 
count of  a  defect  in  the  appeal  bond.  *  *  *  But,  as  we  had  ex- 
amined the  points  made  in  argument  before  this  defect  was  perceived, 
it  may  save  the  parties  future  costs  and  litigation  if  we  state  the  re- 
sult of  that  examination.     *     *     * 

The  right  of  the  infant  petitioner  to  a  distributive  share  of  the  es- 
tate of  his  half-sister,  is  the  prominent  question  in  the  cause.  He  was 
born  eight  months  and  twenty-one  days  after  her  death,  and  the  point 
of  inquiry  is  whether  he  was  at  that  time  in  existence,  so  as  to  enable 
him  to  take. 

Nine  months  is  the  usual  period  of  gestation,  and  we  think  it  right 
to  place  the  commencement  of  foetal  existence  to  that  period  before 
birth.  It  was  formerly  a  question  at  what  time  the  embryo  might  be 
said  to  be  alive,  and  quickening  was  selected  as  the  surest  test  of  life, 
and  the  earliest  point  of  time  at  which  it  could  be  deemed  to  be  in 
existence.  But  it  is  now  settled,  both  in  England  and  in  this  country, 
that  from  the  time  of  conception  the  infant  is  in  esse,  for  the  purpose 
of  taking  any  estate  which  is  for  his  benefit,  whether  by  descent,  de- 
vise, or  under  the  statute  of  distributions,  provided,  however,  that  the 
infant  be  born  alive,  and  after  such  a  period  of  foetal  existence  that 
its  continuance  in  life  might  be  reasonably  expected.  A  premature 
birth  would  not  be  regarded  as  of  a  character  to  give  completeness  to 
the  inchoate  right.  Marsellis  v.  Thalhimer,  3  Paige  (N.  Y.)  35,  21 
Am.  Dec.  66;  Swift  v.  Duffield,  5  Serg.  &  R.  (Pa.)  38;  4  Kent,  248; 
2  Atk.  117;  Williams  on  Exec.  1066;  Chitty,  Med.  Juris.  403;  Beck, 
317. 

We  are  of  opinion,  therefore,  that  in  this  case  the  infant  was  en- 
titled to  take.  The  case,  however,  must  be  stricken  from  the  docket; 
but  the  parties  will  have  right  to  bring  it  up  by  writ  of  error,  if  they 
choose  so  to  do. 

Cause  dismissed  for  want  of  jurisdiction. 

1  The  statement  of  facts  is  omitted,  and  part  only  of  the  opinion  Is  given. 


Ch.  5)  SHIFTING    DESCENTS.  ^'^^ 

DEAL  V.  SEXTON. 

.'Supreme  Court  of  North  Carolina,  1907.    144  N.  O.  157,  56  S.  E.  691,  119  Am. 

St.  Rep.  943.) 

Brown,  J.  It  appears  from  the  case  agreed  that  F.  B.  Wilson  died 
intestate  in  1881,  seised  in  fee  of  the  land  in  controversy.  At  the 
time  of  his  death  his  wife  was  enciente,  and  within  four  months  there- 
after, on  December  22,  1881,  the  plaintiff,  Francis,  was  born._  On 
October  22,  1881,  two  months  before  plaintiff  was  born,  the  widow, 
Deborah,  and  two  daughters,  Carrie  L.  and  Maude  L.  Wilson,  the 
only  children  then  born,  filed  petition  for  partition  and  procured  the 
lands  of  the  intestate  to  be  sold  and  the  proceeds  divided  between 
them.  W.  E.  Sexton  became  the  purchaser,  who  conveyed  to  defend- 
ant for  full  value.  The  plaintiff  was  not  made  party  to  the  proceed- 
ings by  appointment  of  a  guardian  ad  litem  or  otherwise,  either  be- 
fore or  after  her  birth,  and  has  received  no  part  of  the  proceeds  of 
sale.     She  now  seeks  to  recover  her  portion  of  the  inheritance. 

The  question  presented  upon  this  appeal  is  important  and  per- 
plexing, because  of  the  fact  that  the  defendant  is  a  purchaser  for 
value,  and  because  of  the  great  difficulty  in  purchasers  at  such  ju- 
dicial sales  protecting  themselves,  having  no  knowledge  of  the  exist- 
ence of  an  unborn  child  in  its  mother's  womb.  If  we  hold,  as  we 
must,  that  the  inheritance  vested  immediately  in  the  plaintiff,  while 
en  ventre  sa  mere,  upon  the  death  of  the  father,  the  conclusion  must 
follow  that  such  inheritance  ought  not  to  be  divested  and  the  child's 
estate  destroyed  by  judicial  proceedings  to  which  it  was  in  no  form 
or  manner  a  party,  and  for  which  not  even  a  guardian  ad  litem  was 
appointed.  It  may  be  that  our  civil  procedure  is  defective  in  not  pro- 
viding for  such  contingencies,  but  that  is  no  reason  why  the  vested 
estate  of  the  unborn  child  in  esse  should  be  taken  from  it. 

The  general  rule  in  this  country  and  the  acknowledged  rule  of  the 
English  law  is  that  posthumous  children  inherit  in  all  cases  in  like 
manner  as  if  they  were  born  in  the  lifetime  of  the  intestate  and  had 
survived  him,  and  for  all  the  beneficial  purposes  of  heirship  a  child  en 
ventre  sa  mere  is  considered  absolutely  born.  This  has  been  the  recog- 
nized law  of  this  state  since  Hill  v.  Moore,  5  N.  C.  233,  decided  in 
1809,  down  to  Campbell  v.  Everhart,  139  N.  C.  503,  52  S.  E.  201, 
decided  in  1905.  It  is  also  recognized  generally  by  the  text-writers 
and  judicial  decisions  in  other  states.  Kent's  Com.  (13th  Ed.)  vol.  4, 
p.  413 ;  Washburn  on  Real  Property  (5th  Ed.)  vol.  3,  page  16 ;  Tiede- 
man  on  Real  Property,  §  673;    14  Cyc.  39,  where  the  decisions  are 

collected. 

The  statute  law  of  this  state  treats  the  unborn  child  in  its  mother's 
womb  with  the  same  consideration  as  if  born.  By  the  seventh  canon 
of  descent  (Revisal  of  1905,  §  1556),  a  child  born  within  10  lunar 
months  after  the  death  of  the  ancestor  inherits  equally  with  the  other 


476  DESCENT.  (Part  2" 

children.  By  section  1582,  an  infant  unborn,  but  in  esse,  is  rendered 
capable  of  taking  by  deed  or  other  writing  any  estate  whatever  in  the 
same  manner  as  if  he  were  born.  Campbell  v.  Everhart,  supra.  From 
most  remote  times  the  common  law  of  England  regarded  such  child 
as  capable  of  inheriting  direct  from  the  ancestor  as  much  so  as  if 
born.  Doe  v.  Lancashire,  5  T.  R.  49;  Thelluson  v.  Woodford,  4 
Vesey,  Jun.,  227;  Harper  v.  Archer,  4  Smedes  &  M.  (Miss.)  99,  43 
Am.  Dec.  474,  where  all  the  cases  are  collected. 

The  old  writ  of  de  ventre  inspiciendo  was  devised  by  the  courts  for 
the  purpose  of  examining  the  widow,  and  was  granted  in  a  case  where 
a  widow,  whose  husband  had  lands  in  fee,  marries  again  soon  after 
his  death  and  declares  herself  pregnant  by  her  first  husband,  and  un- 
der that  pretext  withholds  the  land  from  the  next  heir.  Such  writ 
commanded  the  sheriff  or  sergeant  to  summon  a  jury  of  12  men  and 
as  many  women,  by  whom  the  female  is  to  be  examined  "tractari  per 
ubera  et  ventrem."  1  Black.  Com.  456 ;  Viner's  Ab.  vol.  21,  p.  546. 
Of  course,  no  such  unseemly  proceeding  would  be  tolerated  in  this 
age,  but  the  General  Assembly  could  easily  protect  the  unborn  child 
as  well  as  the  innocent  purchaser  by  prohibiting  the  sale  of  land  for 
partition  until  12  months  after  the  intestate's  death. 

The  question  as  to  the  status  of  the  purchaser  was  considered  by 
the  Supreme  Court  of  Kentucky,  in  the  case  of  Massie  v.  Hiatt's 
Adm'r,  82  Ky.  314,  in  which  it  is  held:  (1)  A  child  born  within  10 
months  of  the  death  of  the  intestate  is  entitled  to  a  share  in  his  estate, 
as  if  born  and  in  being  at  the  time  of  intestate's  death.  (2)  The 
court  had  jurisdiction  to  sell  the  land  on  the  petition  of  the  guardian 
of  the  two  other  children;  but  the  sale  affected  only  their  rights. 
The  right  of  the  unborn  child  could  not  in  any  wise  be  affected.  (3) 
Having  an  interest  in  the  land,  she  could  not  be  deprived  of  it  by  any 
proceeding  to  which  she  was  not  a  party,  and  may  recover  such  in- 
terest from  a  remote  vendee  of  the  purchaser  at  the  judicial  sale.  The 
Supreme  Court  of  Illinois  reaches  the  same  conclusion,  and  says  that 
a  person  must  have  an  opportunity  of  being  heard  before  a  court  can 
deprive  him  of  his  rights,  and  that  an  unborn  child,  not  having  been 
made  a  party,  can  recover  from  those  claiming  his  title,  as  his  rights 
are  not  cut  off  by  the  decree.    Botsford  v.  O'Conner,  57  111.  72. 

The  case  of  Giles  v.  Solomon,  in  New  York,  10  Abb.  Prac.  (N.  S.) 
97,  note,  is  very  much  in  point.  In  that  case  a  bill  to  foreclose  a  mort- 
gage executed  by  the  deceased  father  was  filed  in  January,  1841.  A 
daughter  was  born  to  his  widow  in  April,  1841,  two  days  after  fore- 
closure decree  was  entered.  The  daughter,  not  being  a  party  to  the 
foreclosure  proceedings,  brought  her  action  in  1866  to  redeem.  The 
court  held  she  was  not  barred  by  the  decree  of  1841,  and  permitted 
her  to  redeem  her  one-seventh  by  paying  one-seventh  of  the  mortgage 
and  interest,  and  charged  the  purchaser  with  back  rents.  In  South 
Carolina  at  one  time  the  courts  declined  to  proceed  with  a  suit  to  par- 
tition the  property  of  the  ancestor  until  12  months  after  his  deaths 


Ch.  5)  SHIFTING    DESCENTS.  477 

SO  as  to  avoid  the  possibility  of  entering  judgment  which  might  con- 
flict with  the  rights  of  an  unborn  child.  As  there  was  no  statute  on 
the  subject,  the  courts  of  South  Carolina  discontinued  this  practice 
for  some  reason,  and  then  held  that  a  child  en  ventre  sa  mere  must 
be  regarded  as  a  person  in  being  who  could  not  be  bound  by  a  judg- 
ment in  partition  to  which  he  was  not  a  party.     Pearson  v.  Carlton, 

18  S.  C.  47. 

It  is  true  that  Judge  Freeman,  in  his  elaborate  note  to  Carter  v. 
White,  101  Am.  St.  Rep.  869,  870,  repudiates  this  doctrine,  and  says : 
"It  is  believed,  however,  that  the  rule  cannot  prevail,  and  that  such  a 
child  must  be  regarded  as  not  in  being  for  the  purpose  of  the  suit, 
and  as  being  represented  by  the  parties  before  the  court,"  etc.  The 
authority  cited  by  the  learned  annotator  is  the  opinion  of  the  Supreme 
Court  of  the  United  States  in  Knotts  v.  Stearns,  91.  U.  S.  638,  33 
L.  Ed.  252,  which  seems  to  sustain  him.  The  fallacy  in  the  position 
seems  to  us  to  be  in  supposing  that  the  living  children  can  represent 
the  unborn  child.  It  is  not  a  case  of  class  representation.  The  in- 
terests are  conflicting,  and  not  mutual.  It  is  to  the  interest  of  the  liv- 
ing heirs  to  make  the  division  as  short  as  possible,  and  therefore  to 
keep  out  the  heir  who  has  not  yet  made  his  appearance. 

The  cases  of  Ex  parte  Dodd,  62  N.  C.  97,  and  many  similar  cases, 
to  Springs  V.  Scott,  132  N.  C.  548,  44  S.  E.  116,  have  no  application 
here,  as  the  object  of  a  partition  proceeding  is  to  dissever  the  interests 
of  the  parties,  and  there  is  no  class  representation  about  it.  The 
tenant  in  common  who  is  not  made  a  party  personally,  or  by  guardian 
ad  litem,  or  in  some  legal  way,  is  not  bound  by  it.  In  the  forcible 
language  of  counsel  for  plaintiff  in  their  brief:  "If  the  court  could 
take  what  the  law  said  was  hers  and  sell  and  convey  to  another  with- 
out her  even  having  knowledge  of  it,  or  representation,  our  boasted 
'process  of  law'  doctrine  is  iridescent — a  constitutional  hallucination." 

Affirmed. 


RICHARDS  V.  RICHARDS. 

(High  Court  of  Chancery,  1860.    H.  R.  V.  Johns.  754.) 

Vice  Chancellor  Sir  W.  Page  Wood.^  A  singular  point  arises  in 
this  case.  The  question  is  whether  the  qualified  heir  (if  I  may  use 
that  term  to  describe  the  person  who  is  heir  between  the  death  of  an 
intestate  and  the  birth  of  a  posthumous  heir)  is  entitled  to  rents  which^ 
are  not  actually  received  before  the  birth  of  the  posthumous  heir. 
Such  questions  are  not  of  frequent  occurrence,  and  it  is  singular  that 
the  point  should  have  arisen  so  recently  as  it  has  done  in  another 
branch  of  the  court. 

2  The  statement  of  facts  and  the  subsequent  opinion  of  the  Vice  Chancellor 
on  another  point  are  omitted. 


478  DESCENT.  (Part  2 

The  ancestor  in  this  case,  Edward  Priest  Richards,  who  was  en- 
titled to  certain  estates  in  tail  under  a  settlement,  and  to  others  in 
fee,  died  on  the  12th  of  November,  1856.  His  posthumous  child  was 
born  on  the  23d  of  June,  1857.  There  were  some  peculiar  circum- 
stances with  reference  to  a  portion  of  the  rents,  but  they  do  not  af- 
fect the  general  question.  All  that  it  is  necessary  to  say  is  that  there 
was  certain  property  of  the  deceased  held,  as  it  appears,  by  tenants 
from  year  to  year,  so  that  no  entry  could  have  been  made  by  Mrs. 
Treherne  [the  qualified  heir],  and  the  question  is:  Who  is  entitled 
to  the  rents  which  accrued  before  the  birth  of  the  plaintiff?  There  is 
a  very  small  amount  of  authority  on  the  subject.  There  are  certain 
expressions  to  be  found  in  the  old  cases  which  perhaps  afford  some 
ground  for  the  argument  that  the  right  of  the  qualified  heir  is  lim- 
ited to  the  rents  actually  received.  The  case  in  the  Year  Book  of  9 
Henry  VI,  the  exact  words  of  which  are  given  in  Watkins  on  De- 
scent (page  185,  note),  was  to  this  effect:  A  man,  having  issue  a 
daughter,  died,  leaving  his  wife  enceinte  with  a  son;  and  the  ques- 
tion was  whether  the  posthumous  child  could  recover  from  the  daugh- 
ter the  intervening  rents ;  and  the  decision  was  "that  the  son  should 
not  have  an  account  or  any  other  remedy  for  the  intermediate  rents, 
because  the  entry  of  the  qualified  heir  was  lawful  until  the  son  was 
born."  It  is  not  specified  there  that  the  rents  had  been  actually  re- 
ceived, but  the  judgment  denies  the  right  of  the  posthumous  heir  to 
an  account  or  to  any  other  remedy. 

Then,  in  Goodtitle  v.  Newman  [3  Wils.  516],  Lord  Chief  Justice 
De  Grey  paraphrases  the  passage  from  the  Year  Book  thus :  "If  a 
man  has  issue  a  daughter  and  dies,  his  wife  being  enceinte,  the  daugh- 
ter may  lawfully  enter,  and  if  she  die  her  heir  may  enter  and  take  the 
profits  for  the  time;  and  afterw^ards  if  the  wife,  being  enceinte  by 
the  ancestor  paramount,  is  delivered  of  a  son,  the  son  may  enter  not- 
withstanding that  the  heir  of  his  sister  is  in  by  descent;  but  he  shall 
not  have  an  action  of  account,  or  any  remedy  for  the  issues  in  the 
mean  time  before  his  birth,  because  that  the  entry  was  congeable  un- 
til he  was  born," 

It  is  not  disputed  that  the  posthumous  heir  has  no  remedy  to  re- 
cover the  rents  actually  received  before  his  birth;  but  in  order  to  de- 
termine this  case  it  is  necessary  to  look  into  the  principle  on  which 
the  doctrine  has  been  established  that  the  qualified  heir  is  entitled  to 
take  possession  of  the  profits.  The  principle,  which  is  very  clearly 
stated  by  Watkins  (page  185,  note),  in  his  comments  on  the  case  in 
the  Year  Book,  seems  to  me  to  be  the  true  one.  He  says:  "When 
we  consider  that  the  daughter  and  her  heir  were  justly  entitled  to  the 
freehold  until  the  son  was  born,  it  seems  to  follow  of  necessity  that 
they  were  justly  entitled  also  to  the  profits  to  enable  them  to  discharge 
the  services  of  the  lands.  While  they  were  in  possession  of  the  feud 
they  were  certainly  subject  to  the  services,  and  the  person  discharging 
the  services  by  right  was  certainly  entitled  to  the  profits." 


Ch,  5)  SHIFTING    DESCENTS.  479 

That,  I  apprehend,  is  the  real  principle  of  the  cases.  The  doctrine 
is  of  the  strictest  common-law  character.  A  statute  was  passed  to 
meet  the  case  of  posthumous  children  entitled  in  remainder.  But 
the  common-law  rule  was,  that  some  one  must  come  in  as  heir  im- 
mediately on  the  death,  in  order  that  there  might  be  no  yacancy  of  the 
freehold.  During  the  period,  therefore,  that  the  posthumous  heir 
was  not  in  existence  to  perform  the  duties  of  tenant,  the  person  on 
whom  the  law  threw  the  burden  was  in  consequence  held  entided  to 
that  which  flowed  from  the  burden,  namely,  the  enjoyment  of  the 
rents  and  profits.  That  principle  is  clearly  independent  of  any  ques- 
tion whether  the  rents  are  actually  received  before  the  birth  or  not, 
and  one  can  easily  see  why  the  Legislature,  when  dealing  with  the 
subject,  did  not  alter  the  law  in  this  respect.  Until  the  modern  change 
in  the  law  of  descent,  a  qualified  heir  might  have  remained  in  pos- 
session of  an  estate  for  many  years.  If  a  son,  being  the  purchaser  of 
an  estate,  died  in  his  father's  lifetime  without  having  any  brothers 
or  sisters,  he  would  have  been  succeeded  by  collaterals,  and  after  an 
interval,  possibly  of  many  years,  a  sister  might  be  born  who  would 
displace  them,  and  she  in  her  turn  might  be  supplanted  by  a  brother. 
It  would  have  been  singular  in  such  a  case  to  say  that  the  successive 
takers  should  have  no  right  to  rents  which  had  accrued  during  their 
respective  tenancies,  but  which  remained  outstanding  at  their  deter- 
mination. The  principle,  therefore,  I  take  to  be  that  the  qualified 
heir  is  entitled  to  the  rents  which  accrue  before  the  birth  of  the  posthu- 
mous heir,  whether  actually  received  before  that  time  or  not. 

Goodale  v.  Gawthorne  [2  Sm.  &  Gifif.  375]  seems  to  be  the  other 
way,  but  the  report  is  very  singular.  Goodale  is  stated  to  have  died 
intestate  as  to  certain  estates,  and  one  would  have  supposed  that  the 
legal  estate  descended.  But  the  report  goes  on  to  say  that  there  was 
a  reference  to  the  master  to  inquire  what  rents  had  been  received  by 
the  trustees  between  the  death  of  J.  Goodale  and  the  birth  of  the  post- 
humous son. 

Now,  it  does  not  appear  what  trustees  there  were;  but  of  course, 
if  the  legal  estate  was  in  trustees,  the  whole  doctrine  as  to  the  rights 
of  the  qualified  heir  was  at  an  end,  because  it  depends  entirely  upon 
strict  legal  principles,  and  had  no  other  end  than  to  keep  the  feud  al- 
ways full.  I  have  assumed  that,  in  the  present  case,  the  lands  were 
occupied  by  tenants  under  leases  or  from  year  to  year,  because,  un- 
less there  was  an  estate  for  years  outstanding,  the  qualified  heir  must 
have  entered,  in  order  to  acquire  any  right  to  the  rents;  but,  as  the 
contrary  is  not  suggested,  I  presume  that,  so  far  as  any  question  of 
entry  is  concerned,  she  had  duly  entitled  herself  to  them. 

There  are  several  authorities  bearing  incidentally  on  this  subject, 
and  the  Vice  Chancellor,  in  his  judgment  in  Goodale  v.  Gawthorne, 
refers  to  Doe  v.  Clarke,  2  H.  Bl.  399,  for  the  principle  that  an  infant 
en  ventre  sa  mere  is  considered  as  born  for  all  purposes  which  are 
for  his  benefit. 


480  DESCENT.  (Part  2 

This  clearly  cannot  be  so  for  all  purposes,  otherwise  no  question 
as  to  intermediate  rents  could  ever  have  arisen,  and  it  is  difficult  to 
see  how  the  right  of  entry  and  distress  could  relate  back  to  a  time  an- 
terior to  the  birth.  The  law  certainly  is  that  the  qualified  heir  is  en- 
titled, at  any  rate,  to  all  the  rents  actually  received,  and  consistently 
with  this  it  cannot  be  said  that  the  heirship  relates  back  for  all  pur- 
poses. 

Do  the  tenants  owe  a  double  duty?  On  the  contrary,  just  as  the 
qualified  heir  owes  the  duty  to  the  lord,  so  the  tenants  owe  their  duty 
to  the  qualified  heir.  The  tenant  cannot  owe  a  duty  to  the  unborn 
heir,  whom  the  law  does  not  recognize  as  the  person  to  perform  the 
services  incident  to  the  estate,  and  therefore  not  as  the  person  to  en- 
joy the  benefits  of  heirship.  The  case  of  Basset  v.  Basset  [3  Atk. 
203],  which  was  relied  on,  really  seems  to  be  in  favor  of  the  infant. 
Lord  Hardwicke  held  that  case  to  be  within  the  meaning  of  the  stat- 
ute, the  estate  being  by  way  of  remainder,  though  not  to  a  person  in 
the  position  expressly  contemplated  by  the  statute;  but  he  distinctly 
notices  that  the  statute  says  nothing  about  descent,  and  lays  down  in 
the  very  same  case  the  doctrine,  that,  in  the  case  of  estates  descended, 
the  quahfied  heir  is  entitled  to  the  intermediate  rents.  The  present 
case  comes  within  the  second  branch  of  that  decision,  and  I  shall  make 
a  declaration  that  all  the  rents  which  accrued  during  the  period  of  sus- 
pense became  the  property  of  the  qualified  heir.* 


SECTION  2.— OTHER  AFTER-BORN  HEIRS 


CUTLAR  V.  CUTLAR. 

(Supreme  Court  of  North  Carolina,  1823.    9  N.  C.  324.) 

This  was  a  petition  for  partition,  filed  by  Frederick  J.  Cutlar,  Jane 
Cutlar,  and  Euphemia  Cutlar,  setting  forth  that  in  1790  their  father, 
Roger  Cutlar,  intermarried  with  Ellen  Spillar,  by  whom  he  had  issue, 
James  Spillar  Cutlar;  that  Ellen,  wife  of  said  Roger,  died  in  1794; 
that  James  Spillar  Cutlar  acquired,  by  purchase,  certain  lands,  and 
died  intestate  and  without  issue,  in  August,  1797;  that  Roger  Cut- 
lar, in  1796,  intermarried  with  Nancy  Jones,  mother  of  the  petitioners; 
that  the  said  Roger  and  Nancy  Cutlar,  in  January,  1797,  had  issue 
born,  a  daughter,  Anna  E.  Cutlar ;  that  after  the  death  of  James 
Spillar  Cutlar  the  petitioners  were  born,  Jane  in  1798,  Frederick  in 
1801,  and  Euphemia  in  1803.     The  petitioners  claimed  as  co-heirs 

•  Local  statutes  should  be  consulted. 


Ch.  5)  SHIFTING    DESCENTS.  481 

at  law  with  Anna  E.  Cutlar  of  their  half-brother  James  Spillar  Cut- 
lar,  and  claimed,  each,  one-fourth  part  of  the  real  estate  of  which 
James  died  seised  and  possessed. 

To  this  petition  there  was,  in  the  court  below,  a  demurrer,  which 
was  sustained,  and  plaintiffs  appealed. 

Taylor,  Chief  Justice.  The  petitioners  are  vmquestionably  entitled, 
each,  to  a  fourth  part  of  the  estate  of  which  J.  S.  Cutlar  died  seised  ; 
for  notwithstanding  the  great  and  radical  changes  in  the  law  of  de- 
scent, which  are  introduced  by  our  statute,  the  principle  relative  to 
posthumous  and  after-born  children  remains  unaltered,  and  adapts 
itself  to  the  course  of  descent  instituted  here.  According  to  the  Brit- 
ish law,  if  lands  are  given  to  a  son,  who  dies  leaving  a  sister  his  heir, 
if  the  parents  have,  at  any  distance  of  time  afterwards,  another  son, 
this  son  shall  divest  the  descent  upon  the  sister,  and  take  the  estate 
as  heir  to  his  brother.  Nor  is  it  uncommon  for  the  same  estate  to 
undergo  frequent  changes  by  the  subsequent  birth  of  presumptive 
heirs  who  are  nearer,  before  it  finally  rests  upon  an  heir  apparent. 
An  estate  may  be  given  to  an  only  child,  upon  whose  death  it  may 
descend  upon  an  aunt  as  the  nearest  presumptive  heir,  who  may  be 
deprived  of  it  by  an  after-born  uncle,  on  whom  a  subsequent  sister 
may  enter,  and  who  will  again  be  deprived  of  the  estate  by  the  birth  of 
a  brother.  2  Blackstone's  Com.  209  (Chris.  Note).  A  more  precise 
analogy  is  presented  by  the  case  where  a  man  has  issue,  a  son  and  a 
daughter;  the  son  purchases  land  in  fee,  and  dies  without  issue,  the 
daughter  shall  inherit  the  land;  but  if  the  father  hath  afterwards  is- 
sue another  daughter,  she  shall  be  coparcencer  with  her  sister.  Co. 
Litt.  lib.  So  in  this  state,  if  the  son  purchases  land,  and  dies  without 
issue,  it  descends  for  the  present  upon  the  brothers  and  sisters  then 
being,  but  if  any  are  subsequently  born,  they  become  equally  entitled ; 
and  the  same  law  must  prevail  relative  to  half-blood,  where  they  are 
entitled  to  inherit.  It  follows,  that  the  judgment  sustaining  the  de- 
murrer and  dismissing  the  petition  must  be  reversed,  and  the  cause 
remanded  for  further  proceedings.* 


BATES  V.  BROWN. 
(Supreme  Court  of  the  United  States,  1866.    5  Wall.  710,  18  L.  Ed.  535.) 

Ejectment.     It  appeared  from  the  agreed  statement  of  facts  that: 

1.  On  the  29th  of  September,  1830,  Alexander  Wolcott  bought  of 

the  state  of  Illinois  certain  lands,  of  which  those  in  controversy  were 

4  The  rule  in  North  Carolina  seems  to  have  been  changed  by  statute  in  1823. 
Caldwell  v.  Black,  27  N.  C.  463  (1845).  Though  not  so  as  to  take  away  the 
rights  of  a  child  en  ventre  sa  mere.  Grant  v.  Bustin,  21  N.  0.  77  (1835).  See 
1  Revisal  1905  N.  C.  §  1556,  rule  7. 

Cost.  Wills— 31 


482 


DESCENT.  (Part  2 


a  part.     At  the  time  of  the  transaction  he  paid  the  purchase  money, 
and  received  the  usual  certificate. 

2.  He  died  on  the  30th  of  October,  1830,  leaving  a  daughter,  Mary 
Ann  Wolcott,  his  only  child,  and  his  wife,  Eleanor,  him  surviving. 
He  left  a  will,  duly  executed,  which  contained  the  following  provision : 

"I  further  give  and  devise  to  my  said  wife,  Eleanor  M.  Wolcott, 
and  my  said  daughter,  all  my  freehold  estate  whatsoever,  to  hold  to 
them,  the  said  Eleanor  M.  Wolcott  and  Mary  Ann  Wolcott,  their 
heirs  and  assigns  forever." 

3.  Mary  Ann  Wolcott,  the  daughter,  died  on  the  l(3th  of  January, 
1832,  aged  seven  years,  intestate  and  without  issue. 

4.  On  the  13th  of  May,  1833,  Eleanor  M.  Wolcott  conveyed  to  Da- 
vid Hunter,  his  heirs  and  assigns,  with  a  covenant  of  general  war- 
ranty, the  premises  in  controversy. 

5.  On  the  5th  of  July,  1833,  a  patent  was  issued  by  the  Governor 
of  Illinois  for  the  land  purchased  by  Alexander  Wolcott,  as  before 
stated,  to  his  "legal  representatives,  heirs  and  assigns." 

6.  Eleanor  M.  Wolcott,  his  widow,  married  George  C.  Bates  on  the 
26th  of  May,  1836. 

7.  The  plaintiff,  Kinzie  Bates,  was  the  issue  of  that  marriage,  and, 
was  born  on  the  13th  of  April,  1838,  and  was  the  only  child  of  his 
parents. 

8.  His  mother  died  on  the  1st  of  August,  1849,  leaving  her  hus- 
band, George  C.  Bates,  then  and  still  surviving.  The  plaintiff,  Kinzie 
Bates,  claimed  title  as  the  heir  at  law  of  his  deceased  half-sister,  Mary 
Ann  Wolcott.    *    *    * 

Mr.  Justice  Swayne."  Mary  Ann  Wolcott,  from  whom  the  plain- 
tiff in  error  claims  to  have  derived  his  title  by  inheritance  died  nearly 
four  years  before  his  birth.  During  all  the  intervening  time  it  is  not 
denied  that  the  title  was  vested  in  his  mother  and  her  grantee.  Such 
was  the  effect  of  the  statute.  It  is  clear  in  its  language,  and  there  is 
no  room  for  controversy  upon  the  subject.  Although  born  after  the 
title  became  thus  vested,  he  insists  that  upon  his  birth  it  became,  to 
the  extent  of  his  claim,  divested  from  the  grantee  and  vested  in  him. 
His  later  birth  and  relationship  to  the  propositus,  he  contends,  is  to 
be  followed  by  the  same  results  as  if  he  had  been  living  at  the  time  of 
her  death. 

It  is  alleged  that  the  rule  of  "shifting  inheritances,"  in  the  English 
law  of  descent,  is  in  force  in  Illinois,  and  must  govern  the  decision  of 
this  case. 

The  operation  of  this  rule  is  thus  tersely  illustrated  in  a  note  by 
Chitty,  in  his  Blackstone:  "As  if  an  estate  is  given  to  an  only  child, 
who  dies,  it  may  descend  to  an  aunt,  who  may  be  stripped  of  it  by  an 

5  The  statement  of  facts  is  abbreviated,  and  part  only  of  the  opinion  ia 
given. 


Ch.  5)  SHIFTING    DESCEKTS.  4:83 

after-born  uncle,  on  whom  a  subsequent  sister  of  the  deceased  may 
enter,  and  who  will  again  be  deprived  of  the  estate  by  the  birth  of  a 
brother.  It  seems  to  be  determined  that  every  one  has  a  right  to  re- 
tain the  rents  and  profits  which  accrued  while  he  was  thus  legally- 
possessed  of  the  inheritance.     Harg.  Co.  Litt.  11;    3  Wils.  526." 

Such  is  undoubtedly  the  common  law  of  England.  Watkins  on  De- 
scents, 169.    *     *     * 

The  Ordinance  of  1787  contains  a  complete  series  of  provisions 
upon  the  subject.  They  are  the  type  and  reflex  of  the  action  of  many 
of  the  states  at  that  time.  The  ordinance  declared  that  the  estates  of 
persons  dying  intestate  "shall  descend  to  and  be  distributed  among 
their  children,  and  the  descendants  of  a  deceased  child,  in  equal  parts ; 
the  descendants  of  a  deceased  child  or  grandchild  to  take  the  share 
of  their  deceased  parent  in  equal  parts  among  them;  and  when  there 
shall  be  no  children  or  descendants,  then  in  equal  parts  to  the  next  of 
kin,  in  equal  degree;  and  among  collaterals  the  children  of  a  de- 
ceased brother  or  sister  of  the  intestate  shall  have,  in  equal  parts  among 
them,  their  deceased  parent's  share;  and  there  shall  in  no  case  be  a 
distinction  between  kindred  of  the  whole  and  half  blood." 

We  find  here  not  a  trace  of  the  common  law.  These  provisions  are 
diametrically  opposed  to  all  its  leading  maxims.  We  cannot  infer 
from  their  silence  that  anything  not  expressed  was  intended  to  be 
adopted  from  that  source  by  implication  or  construction. 

The  statute  [of  Illinois]  governing  the  descent  of  real  estate,  al- 
ready referred  to,  is  also  a  complete  code  upon  the  subject  of  which 
it  treats.  It  is  to  be  presumed  to  cover  every  case  for  which  the 
Legislature  deemed  it  proper  to  provide.  If  the  same  question  had 
come  before  us  under  the  Ordinance,  we  should  have  said,  with  ref- 
erence to  the  common  law,  conflict  is  abrogation  and  silence  is  ex- 
clusion. The  spirit  and  aims  of  the  two  systems  are  wholly  different. 
One  seeks  to  promote  accumulation;  the  other  diffusion.  One  recog- 
nizes and  cherishes  the  exclusive  claim  of  the  eldest  son;  the  other 
the  equal  rights  of  all  his  brothers  and  sisters.  The  latter  makes  no 
distinction  on  account  of  age,  sex  or  half  blood.  We  apply  to  the 
statute  also  the  remark  that  silence  is  exclusion.  It  speaks  in  the 
present  tense — of  the  state  of  things  existing  at  the  time  of  the  death 
of  the  intestate,  and  not  of  any  change  or  different  state  of  things 
which  might  occur  thereafter.  If  the  Legislature  had  designed  to  pro- 
vide for  this  case,  according  to  the  rule  insisted  upon,  we  cannot 
doubt  that  they  would  have  said  so  in  express  terms.  The  statute 
bears  no  marks  of  haste  or  inattention.  We  cannot  believe  it  was  in- 
tended to  leave  a  rule  of  the  common  law  so  well  known,  and  so  im- 
portant, to  be  deduced  and  established  only  by  the  doubtful  results 
of  discussion  and  inference.  The  draughtsman  of  the  bill  could  not 
have  overlooked  it,  and  the  silence  of  the  statute  is  full  of  meaning. 
One  class  of  posthumous  children  are  provided  for.     We  see  no 


484  DESCENT.  (Part  2 

reason  to  believe  that  another  was  intended  to  be  included,  especially 
when  the  principle  involved  is  so  important.  The  intention  of  the 
Legislature,  constitutes  the  law.  That  intention  is  manifested  alike 
by  what  they  have  said  and  by  what  they  have  omitted  to  say.  Their 
language  is  our  guide  to  their  meaning,  and  under  the  circumstances 
we  can  recognize  none  other.  We  cannot  go  farther  than  they  have 
gone.  The  plaintiff  in  error  asks  us,  in  effect,  to  interpolate  into  the 
statute  a  provision  which  it  does  not  contain.  Were  we  to  do  so,  we 
should  assume  the  function  of  the  Legislature  and  forget  that  of  the 
court.  The  limit  of  the  law  is  the  boundary  of  our  authority,  and  we 
may  not  pass  it. 

The  principle  contended  for  was  applied  in  the  case  of  Dunn  v. 
Evans,  7  Ohio,  169,  pt.  1.  The  case  is  briefly  reported  and  no  argu- 
ments of  counsel  appear.  It  was  also  adopted  in  North  Carolina,  in 
Cutlar  et  al.  v.  Cutlar,  9  N.  C.  324,  and  in  Caldwell  v.  Black,  27  N. 
C.  463.  No  recognition  of  it  is  to  be  found,  it  is  believed,  in  any  other 
American  adjudication. 

The  subject  was  elaborately  examined  by  the  Supreme  Court  of 
Ohio  in  Drake  v.  Rogers,  13  Ohio  St.  21,  and  Dunn  v.  Evans  was 
overruled.  It  came  before  the  Supreme  Court  of  Indiana  in  Cox  v. 
Matthews,  17  Irtd.  367,  and  received  there  also  a  thorough  examina- 
tion. The  result  was  the  same  as  in  the  last  case  in  Ohio.  The  doc- 
trine was  repudiated. 

The  court  said:  "Under  the  laws  of  this  state  it  is  contemplated 
that  such  change  of  title  from  one  living  person  to  another  is  to  be 
made  by  deed  duly  executed,  rather  than  by  our  statutes  of  descent. 
*  *  *  The  feudal  policy  of  tying  up  estates  in  the  hands  of  a  landed 
aristocracy,  which  had  much  to  do  with  the  shifting  of  descents  as 
recognized  by  the  English  canons  of  descent,  is  contrary  to  the  spirit 
of  our  laws  and  the  genius  of  our  institutions.  It  has  been  the  policy, 
in  this  state,  and  in  this  country  generally,  not  only  to  let  estates  de- 
scend to  heirs  equally,  without  reference  to  sex  or  primogeniture,  but 
also  to  make  titles  secure  and  safe  to  those  who  may  purchase  from 
heirs  upon  whom  the  descent  may  be  cast.  Our  laws  have  defined  and 
determined  who  shall  inherit  estates  upon  the  death  of  a  person  seised 
of  lands.  When  those  thus  inheriting  make  conveyances,  the  pur- 
chasers have  a  right  to  rely  upon  the  title  thus  acquired.  If  titles  thus 
acquired  could  be  defeated  by  the  birth  of  nearer  heirs,  perhaps  years 
afterwards,  great  injustice  might,  in  many  cases,  be  done,  and  utter 
confusion  and  uncertainty  would  prevail  in  reference  to  titles  thus 
acquired.  We  are  of  opinion  that  the  doctrine  of  shifting  descents 
does  not  prevail  under  our  laws,  any  more  than  the  other  English  rule, 
that  kinsmen  of  the  whole  blood  only,  can  inherit." 

The  rule  is  sanctioned  by  no  American  writer  upon  the  law  of  de- 
scents. Judge  Reeve  [on  Descents,  p.  74,  Introduction],  speaking 
of  distributees,  says:    "I  am  of  opinion  that  such  posthumous  chil- 


Ch.  5)  SHIFTING   DESCENTS.  485 

dren  who  were  born  at  the  time  of  the  distribution  were  entitled,  and 
none  others." 

It  is  to  be  reg-retted  that  we  have  not  the  benefit  of  an  adjudication 
by  the  Supreme  Court  of  Illinois  upon  the  subject. 

Their  interpretation — the  statute  being  a  local  one — would  of  course 
be  followed  in  this  court.  We  have,  however,  no  doubt  of  the  sound- 
ness of  the  conclusion  we  have  reached. 

We  find  no  error  in  the  record,  and  the  judgment  of  the  Circuit 
Court  is  affirmed. 


486  DESCENT.  (Part  2 

CHAPTER  VI 
THE  TRANSFER  OF  EXPECTANCIES 


SECTION  1.— RELEASE  TO  ANCESTOR 


HILTON  V.  HILTON. 

(Supreme  Judicial  Court  of  Maine,  1907.    103  Me.  92,  68  Atl.  595.) 

Emery,  C.  J.^  Joshua  Hilton  died  intestate,  leaving  two  children 
only  as  heirs,  the  petitioner  and  the  respondent  in  this  petition  for  a 
partition  of  the  real  estate  of  the  deceased  intestate.  The  respondent 
claims  that  the  petitioner  received  from  their  father  in  his  lifetime  a 
gift  and  grant  which  the  petitioner  accepted  and  acknowledged  in 
writing  as  a  full  advancement  of  all  his  distributive  share  in  the  real 
and  personal  estate  of  his  father,  and  hence  has  no  title  to  any  part 
of  the  real  estate  sought  to  be  divided. 

In  this  state  the  whole  subject-matter  of  the  devolution  of  the  prop- 
erty of  a  deceased  intestate,  including  advancement,  is  governed  by 
statute.  The  statute  on  descent  of  real  estate  (Rev.  St.  c.  77)  pro- 
vides (in  section  4)  that  gifts  and  grants  of  real  or  personal  estate 
to  a  child  or  grandchild  shall  be  deemed  an  advancement  when  so 
expressed  therein,  or  acknowledged  in  writing  to  be  such  (in  section 
5) ;  that,  when  the  value  of  an  advancement  is  determined  by  the  in- 
testate in  his  gift  or  is  acknowledged  in  writing,  it  (that  value)  shall 
be  allowed  in  the  distribution;  and  (in  section  6)  that,  when  the  ad- 
vancement in  real  or  personal  estate  exceeds  the  recipient's  share  in 
the  real  or  personal  estate  as  the  case  may  be,  he  shall  receive  so  much 
less  of  the  other  on  distribution  as  will  make  his  whole  share  equal. 
These  sections  authorize  a  parent  and  child  to  fix  for  themselves  the 
value  of  the  advancement,  and  whenever  they  do  so  that  value  so 
fixed,  large  or  small,  is  to  be  allowed  in  the  distribution,  even  if  it 
be  fixed  as  the  equivalent  of  the  child's  whole  share  in  both  the  real 
and  personal  estate.  It  is  thus  competent  for  a  child  by  accepting  an 
advancement,  however  small,  to  debar  himself  from  all  right  to  share 
in  his  parent's  estate,  however  large.  Smith  v.  Smith,  59  Me.  214; 
Nesmith  v.  Dinsmore,  17  N.  H.  515 ;    Simpson  v.  Simpson,  114  III. 

1  Tlie  statement  of  facts  Is  omitted,  and  part  only  of  ttie  opinion  is  given. 


Ch.  6)  THE   TRANSFER   OF   EXPECTANCIES.  487 

603,  4  N.  E.  137,  7  N.  E.  287;   Palmer  v.  Culbertson,  143  N.  Y.  213, 
38  N.  E.  199. 

From  the  report  in  this  case  it  appears  that  controversies  had  arisen 
between  the  petitioner  and  his  wife  on  the  one  hand,  and  his  father 
on  the  other.  To  adjust  these  controversies  and  prevent  Htigation  over 
them,  the  parties  signed  and  dehvered  each  to  the  other  a  written  in- 
strument of  agreement,  releases,  and  conveyances,  dated  January  31, 
1903,  and  herewith  printed  as  a  part  of  this  opinion.  By  this  instru^ 
ment  the  father  on  his  part  released  to  the  petitioner  and  his  wife  all 
demands  of  whatever  nature  he  had  against  either  of  them,  also  re- 
leased to  them  his  rights  in  certain  personal  property  in  Norridge- 
wock, 'and  bound  himself  to  give  them  a  quitclaim  of  certain  real 
estate  there.  It  is  "not  questioned  that  such  quitclaim  was  duly  given 
as  a  part  of  the  transaction.  As  a  result  the  petitioner  received  from 
his  father  property,  or  property  rights,  presumably  of  some  pecuniary 
value  and  which  would  constitute  an  advancement  if  so  intended,  and 
such  intention  evidenced  in  writing  as  required  by  the  statute.  By  the 
same  instrument  the  petitioner  and  his  wife  on  their  part,  and  in  con- 
sideration of  the  releases,  conveyances,  and  agreements  made  therein 
by  the  father,  acknowledged  full  satisfaction  of  all  demands  against 
him,  his  heirs,  and  personal  representatives,  and  also  "receipt  in  full 
of  all  demands  they  or  either  of  them  claiming  as  heir  or  otherwise 
have  or  may  have  against  the  estate  of"  the  father.  It  is  urged  in  ar- 
gument by  the  petitioner  that  this  latter  clause  had  reference  only  to 
claims  as  heir  of  the  petitioner's  mother ;  the  father  having  received 
some  property  inherited  by  the  petitioner  from  his  mother.  The  first 
clause,  however,  that  acknowledging  "full  satisfaction  of  all  demands" 
against  the  father,  "his  heirs  and  personM  representatives,"  is  most 
comprehensive,  and  completely  covers  all  the  petitioner's  claims  against 
his  father  as  heir  of  his  mother.  The  addition  of  the  second  clause 
after  such  a  comprehensive  clause,  and  the  specification  in  it  of  "the 
estate"  of  the  father  as  the  estate  to  be  freed  from  the  petitioner's 
claim  as  heir,  satisfies  us  that  the  petitioner  in  writing  acknowledged 
the  benefits  accruing  to  him  from  the  transaction  to  be  an  advance- 
ment. 

The  real  value  of  the  releases  and  property  interests  thus  given 
and  granted  to  the  petitioner  is,  of  course,  quite  problematical,  but 
the  petitioner  accepted  them  in  writing  as  the  full  equivalent  of 
whatever  share  might  otherwise  come  to  him  in  his  father's  estate 
large  or  small.  That  was  the  value  fixed  by  the  parties  and  by  them 
put  in  writing  to  satisfy  the  statute.  The  petitioner  was  of  full  age, 
of  sound  mind,  and,  so  far  as  appears,  acted  freely  and  understand- 
ingly.  In  view  of  the  situation  at  the  time,  he  may  have  deemed  his 
chance  of  receiving  anything  from  his  father's  estate  by  will  or  de- 
scent as  very  slender  and  with  good  reason  have  preferred  the  ar- 
rangement made  in  the  writing.     He  was  authorized  by  the  statute 


488  DESCENT.  (Part  2 

to  make  such  an  arrangement  in  writing,  and  we  think  he  has  done  so, 
and  thereby  received  in  his  father's  Hfetime  what  he  acknowledged  to 
be  his  full  lawful  share  in  his  father's  estate.    *    *     * 
Petition  dismissed,  with  costs.^ 


SECTIOM  2.— CONVEYANCE  TO  THIRD  PERSONS 


McCLURE  V.  RABEN. 
(Supreme  Court  of  Indiana,  1890.    125  Ind.  139,  25  N.  E.  179,  9  L.  R.  A.  477.) 

Olos,  J."  [After  stating  that  in  this  suit  for  partition  one  Raben, 
by  amended  cross-petition,  set  up  that  Joseph  McClure,  by  deed  which 
stated  that  he  "does  hereby  grant,  bargain,  sell  and  convey,"  con- 
veyed to  Samuel  D.  McReynolds,  his  heirs  and  assigns,  forever,  the 
real  estate  sought  to  be  partitioned,  "or  all  the  estate,  right  and  title 
that  the  said  McClure  may  have  in  and  to  the  same  at  the  death  of  his 
mother,  the  widow  of  John  McClure,  deceased,  as  one  of  her  heirs  at 
law,"  that  the  said  McReynolds  conveyed  to  Raben,  and  that  the 
mother  of  McClure  was  dead,  and  after  noting  that  a  demurrer  by 
Joseph  McClure  to  this  amended  cross-petition  was  overruled,  the 
learned  Justice  continued:] 

The  question  presented  is  as  to  whether  or  not  the  sale  and  convey- 
ance by  Joseph  McClure  of  his  expectant  interest  in  the  real  estate 
owned  in  fee  simple  by  his  mother,  and  of  which  she  was  in  posses- 
sion at  the  time  of  the  sale,  is  valid  either  in  law  or  in  equity,  so  as 
to  pass  the  title  thereto  to  his  grantee  on  Joseph's  survival  of  his 
mother. 

2  See  Brands  v.  De  Witt,  44  N.  J.  Eq.  545,  10  Atl.  181,  14  Atl.  894,  6  Am.  St 
Rep.  909  (1888);  In  re  Simon's  Estate,  158  Mich.  256,  122  N.  W.  .544  (1909). 
In  In  re  Garcelon,  104  Gal.  570,  38  Pac.  114,  32  D.  R.  A.  595,  43  Am.  St. 
Rep.  134  (1894),  the  rule  was  adhered  to  despite  a  statute  which  provided 
that  "a  mere  possibility,  such  as  the  expectancy  of  an  heir  apparent,  is 
not  to  be  deemed  an  Interest  of  any  kind"  and  "cannot  be  transferred."  See, 
also,  Estate  of  Edelman,  148  Cal.  233,  82  Pac.  9G2.  113  Am.  St.  Rep.  231  (19(t.5). 
But  see  Headrick  v.  McDowell,  102  Va.  124,  127,  45  S.  E.  804,  G5  L.  R.  A.  578, 
102  Am.  St.  Rep.  843  (1903),  where  the  court  says  that  "upon  the  death  of  the 
ancestor  the  descent  is  cast  by  operation  of  law  upon  the  heirs,  and  the  per- 
sonalty passes  in  accordance  with  the  statute  of  distribution,"  save  only  that 
an  advancement  must  be  Itrou^ht  into  hotchpot.  To  the  same  effect  is  Elliott 
V.  Leslie,  124  Ky.  553,  99  S.  W.  619.  124  Am.  St.  Rep.  418  (1907). 

In  Simpson  v.  Simpson,  114  III.  G03,  4  N.  E.  137,  7  N.  E.  287  (1885),  the  ac- 
cei)tance  by  B.  of  property  in  full  satisfaction  of  liis  share  as  prospective 
heir  of  his  father  A.'s  estate  kept  B.'s  children  from  getting  anything  from 
A.'s  estate,  although  B.  died  before  A.  See,  also,  Quarles  v.  Quarles.  4  Mass. 
680  (1808).  But  see  Buck  v.  Kittle,  49  Vt.  288  (1877).  On  the  validity  of 
transactions  between  an  heir  and  his  ancestor  relating  to  the  former's  ex- 
pectancy. se«»  32  I..  R.  A.  595.  note :    05  L.  R.  A.  578,  note. 

«  Part  only  of  the  opinion  is  given. 


Ch.  6)  THE    TKANSFER   OF    EXPECTANCIES.  489 

The  broad  question  is  presented  as  to  whether  a  child,  during  the 
lifetime  of  his  father  or  mother,  can  make  a  valid  sale  and  transfer 
of  an  expectant  interest  in  the  real  estate  at  the  time  owned  by  and 
in  the  possession  of  the  parent,  as  in  this  case.  It  is  conceded  that 
the  deed  in  this  case  contains  no  covenants  of  warranty  by  which  an 
after-acquired  title  would  pass  to  the  grantee,  but  it  is  contended  on 
behalf  of  the  appellee  that  the  cross-complaint  shows  the  sale  to  have 
been  made  in  good  faith,  and  for  a  valuable  consideration,  and  with- 
out fraud,  and  that  it  is  valid  in  equity,  and  that  the  grantee  is  en- 
titled to  have  it  specifically  enforced  on  the  estate  vesting  in  the  gran- 
tor.   In  this  contention  of  the  appellee  we  cannot  concur. 

It  is  a  general  rule  that  a  sale  in  the  absence  of  property  conveys 
no  title.  There  must  be  something  to  sell  or  else  there  can  be  no  sale. 
It  is  conceded  that  the  rule  which  applies  in  case  of  a  deed  of  general 
warranty,  whereby  the  heir  would  be  barred  from  setting  up  a  sub- 
sequently acquired  title,  does  not  apply;  and  applying  the  rule  ap- 
plicable to  quitclaim  deeds,  and  treating  the  conveyance  in  this  case 
as  such,  the  heir  is  not  estopped  from  setting  up  the  subsequently  ac- 
quired title.    *    *    * 

The  identical  question  involved  in  this  case  was  decided  by  the  Su- 
preme Court  of  Ohio  in  the  case  of  Hart  v.  Gregg,  32  Ohio  St.  502, 
and  it  was  held  that  the  conveyance  by  a  son  of  his  expectancy  in 
land  owned  by  his  father,  which  would  descend  to  him  if  he  survived 
his  father,  and  the  latter  should  die  intestate,  owning  the  same,  is 
the  conveyance  of  a  naked  possibility,  not  coupled  with  an  interest, 
and  passes  no  estate  or  interest  in  the  land;  that  such  a  conveyance 
does  not  operate  to  defeat  the  grantor's  title  afterwards  acquired  by 
descent,  except  by  way  of  legal  or  equitable  estoppel;  and  that  if  such 
conveyance  contains  no  covenants  of  warranty  or  recitals,  and  there 
are  no  acts  of  the  grantor  amounting  to  an  equitable  estoppel,  he  is 
not  estopped  from  asserting  an  after-acquired  title.  In  that  case  it  is 
said  by  the  court :  "In  the  deed  before  us,  as  there  are  no  covenants  of 
warranty,  nor  any  recitals  of  fact  that  he  had  any  title,  or  any  right 
to  make  the  conveyance,  there  is  nothing  that  would  estop  the  grantor, 
either  at  law  or  in  equity,  from  setting  up  an  after-acquired  title, 
where,  as  in  this  case,  there  is  no  possession  under  the  deed,  and  no 
charge  of  fraud  in  the  transaction."  See  Boynton  v.  Hubbard,  7 
Mass.  112. 

Indeed,  many  of  the  authorities  which  assert  that  such  conveyances 
may  be  upheld  and  enforced  by  courts  of  equity  declare  that  the  onus 
is  upon  the  purchaser  to  show  that  the  transaction  was  a  bona  fide 
one,  and  based  upon  a  full  consideration,  and  that  the  ancestor  from 
whom  the  estate  is  expected  was  informed  of  and  acquiesced  in  the 
sale,  and  that  inadequacy  of  consideration  alone  is  sufficient  to  avoid 
the  contract.  Even  the  enforcement  of  them,  under  such  circum- 
stances, is  regarded  of  doubtful  propriety. 

Story,  in  his  work  on  Equity  (1  Story,  Eq.  Jur.  [12th  Ed.]  §  328). 


490  DESCENT.  (Part  2 

says:  "Let  us  now  pass  to  the  consideration  of  the  third  class  of  con- 
structive frauds,  combining  in  some  degree  the  ingredients  of  the 
others,  but  prohibited  mainly  because  they  unconscientiously  compromit 
or  injuriously  affect  the  private  rights,  interests,  or  duties  of  the  par- 
ties themselves,  or  operate  substantially  as  frauds  upon  the  private 
rights,  interests,  duties,  or  intentions  of  third  persons."  Again  it  is 
said  (section  333)  :  "But  the  great  class  of  cases  in  which  relief  is 
granted  under  this  third  head  of  constructive  fraud  is  that  where  the 
contract  or  other  act  is  substantially  a  fraud  upon  the  rights,  inter- 
ests, duties,  or  intentions  of  third  persons.  And  here  the  general 
rule  is,  that  particular  persons  in  contracts  and  other  acts  shall  not 
only  transact  bona  fide  between  themselves,  but  shall  not  transact  mala 
fide  in  respect  to  other  persons  who  stand  in  such  a  relation  to  either 
as  to  be  affected  by  the  contract  or  the  consequences  of  it.  And  as  the 
rest  of  mankind  besides  the  parties  contracting  are  concerned,  the  rule 
is  properly  said  to  be  governed  by  public  utility."  Section  334 :  "It  is 
upon  this  ground  that  relief  has  been  constantly  granted  in  what  are 
called  'catching  bargains'  with  heirs,  reversioners,  and  expectants 
during  the  life  of  their  parents,  or  other  ancestors.  ]\Iany,  and  indeed 
most,  of  these  cases,  as  has  been  pointedly  remarked  by  Lord  Hard- 
wicke,  have  been  mixed  cases,  compounded  of  almost  every  species  of 
fraud,  there  being  sometimes  proof  of  actual  fraud,  which  is  always 
decisive.  There  is  always  fraud  presumed  or  inferred  from  the  cir- 
cumstances or  conditions  of  the  parties  contracting,  from  weakness 
on  one  side  and  usury  on  the  other,  or  extortion  or  advantage  taken 
of  that  weakness.  There  has  always  been  an  appearance  of  fraud 
from  the  nature  of  the  bargain,  even  if  there  be  no  proof  of  any  cir- 
cumvention, but  merely  from  intrinsic  unconscionableness  of  the  bar- 
gain. In  most  of  these  cases  have  concurred  deceit  and  illusion  on 
other  persons  not  privy  to  the  fraudulent  agreement.  The  father, 
ancestor,  or  relation  from  whom  was  the  expectation  of  the  estate,  has 
been  kept  in  the  dark.  The  heir  or  expectant  has  been  kept  from 
disclosing  his  circumstances,  and  from  resorting  to  them  for  advice, 
which  might  have  tended  to  his  relief  and  also  reformation.  This 
misleads  the  ancestor  who  has  been  seduced  to  leave  his  estate,  not  to 
his  heir  or  family,  but  to  a  set  of  artful  persons  who  have  divided  the 
spoils  beforehand."  See,  also,  sections  335,  336.  IL  is  laid  down  as  a 
rule  that  "it  will  be  sufficient  to  make  the  purchase  unimpeachable,  if  a 
fair  price,  or  the  fair  market  price,  be  given  therefor  at  the  time  of 
the  dealing."    Section  336. 

In  treating  of  this  subject,  Pomeroy,  in  his  work  on  Equity  Juris- 
prudence (volume  2,  pp.  473,  474,  §  953),  says:  "Equity,  therefore, 
treats  such  dealings  with  expectant  interests  as  a  possible  fraud  upon 
the  heirs  and  reversioners  who  are  immediate  parties  to  the  transac- 
tion, and  as  a  virtual  fraud  upon  their  ancestors,  life  tenants,  and 
other  present  owners."  And  it  is  further  said :  "But  in  every  such 
conveyance  or  contract  with  an  heir,  reversioner,  or  expectant,  a  pre- 


Ch.  6)  THE    TRANSFER   OF    EXPECTANCIES,  491 

sumption  of  invalidity  arises  from  the  transaction  itself,  and  the  bur- 
den of  proof  rests  upon  the  purchaser  or  other  party  claiming  the 
benefit  of  the  contract  to  show  affirmatively  its  perfect  fairness,  and 
that  a  full  and  adequate  consideration  was  paid — that  is,  the  fair  mar- 
ket value  of  the  property,  and  not  necessarily  the  value  as  shown  by 
the  life  tables."  The  same  rule  is  applied  to  this  class  of  cases  wheth- 
er the  grantor  be  an  infant  or  an  adult. 

From  the  rule  as  laid  down  by  Story  and  Pomeroy,  and  which  we 
have  quoted,  it  will  be  seen  that  such  contracts  are  looked  upon  with 
suspicion,  and  that  they  are  presumed  fraudulent,  and  will  not  be 
enforced  except  it  be  clearly  made  to  appear  to  be  a  perfectly  fair 
transaction,  and  that  the  actual,  full,  and  fair  market  value  was  paid 
for  the  property;  and,  indeed,  before  such  a  sale  will  be  enforced, 
we  think  it  also  within  the  rule,  and  necessary  to  the  enforcement  of 
such  a  contract,  to  allege  and  prove  that  such  contract  and  sale  were 
made  known  to  the  ancestor  or  person  from  whom  the  estate  is  ex- 
pected, and  he  put  in  full  possession  of  the  facts  concerning  such 
transaction,  and  his  consent  obtained  to  such  contract,  sale,  or  con- 
veyance; that  if  not  made  known  to  him,  it  operates  as  a  fraud  upon 
him.  We  regard  such  contracts  and  conveyances  against  public  poli- 
cy. The  grantor  at  the  time  has  no  property  or  interest  in  the  prop- 
erty of  his  father  or  ancestor  which  he  can  sell  or  convey,  and  none 
which  the  grantee  can  purchase.  It  is  a  mere  gambling  contract.  It 
is  wagering  that  the  son  or  heir  will  survive  the  father  or  ancestor, 
and  that  the  latter  will  not  dispose  of  the  property,  and  will  die  in- 
testate, whereby  the  grantor  will  at  some  time  in  the  future  inherit 
an  interest  which  he  can  then  convey.  It  operates  as  a  fraud  upon 
the  ancestor,  and  divests  his  bounty  from  the  kin  to  a  stranger.  It 
encourages  extravagance,  prodigality,  and  vice  on  behalf  of  the  heir, 
and  in  some  instances  might  create  an  anxiety  on  the  part  of  an  avari- 
cious or  vicious  purchaser  for  the  death  of  the  ancestor. 

We  are  not  prepared  to  say  that  some  case  might  not  arise  in  which 
it  would  be  inequitable  not  to  enforce  a  contract  made  with  an  heir 
for  his  future  prospective  inheritance  in  the  estate  of  his  ancestor, 
but  we  do  not  think  the  facts  alleged  in  the  cross-complaint  present 
a  case  entitling  the  cross-complainant  to  relief.  It  must,  at  least,  be 
necessary  in  such  a  pleading  to  allege  the  facts  showing  the  amount 
and  value  of  the  estate  purchased,  and  the  amount  of  the  purchase 
money  paid,  and  that  such  purchase  money  was  the  full  and  fair 
market  value  of  the  property  at  the  time  of  the  purchase.  The  cross- 
complaint  is  defective  in  that  respect.  We  think  it  further  necessary 
to  the  validity  of  such  conveyance  that  it  was  made  known  to,  and 
that  the  ancestor  acquiesced  in  such  sale  and  conveyance. 

Judgment  reversed,  at  costs  of  appellee,  with  instructions  to  sus- 
tain the  demurrer  to  the  cross-complaint,  and  for  further  proceed- 
ings in  accordance  with  this  opinion. 


492  DESCENT.  (Part  2 

E1.L10TT,  J.  I  concur  in  the  conclusion  that  the  cross-complaint  is 
bad,  but  I  do  not  fully  assent  to  some  of  the  propositions  stated  by 
the  court,  nor  to  all  of  the  reasoning  of  the  opinion.  In  my  judgment, 
an  heir  apparent  may  convey  an  estate  in  expectancy,  but,  in  order 
to  enforce  the  conveyance,  the  purchaser  must  show  good  faith,  and 
that  he  paid  the  fair  value  of  the  property  conveyed.  It  is  not  enough 
to  show  that  he  paid  the  value  of  the  estate  considered  as  an  estate 
in  expectancy,  but  he  must  show  that  he  paid  the  value  of  the  prop- 
erty without  reference  to  the  uncertainty  of  the  estate  ever  vesting. 
In  other  words,  he  must  show  that  he  paid  the  full  value  of  the  prop- 
erty, estimated  as  if  the  estate  were  absolute  and  fully  vested,  and 
without  regard  to  any  hazard  resulting  from  the  uncertain  nature  of 
the  expectant  estate.  It  is  the  value  of  the  property,  and  not  the  value 
of  the  expectant  estate,  which  the  purchaser  must  pay.  I  think,  too, 
that  this  rule  applies  where  there  is  a  warranty  deed,  or  where  the 
estate  conveyed  is  specifically  described,  but  that  it  does  not  apply  where 
there  is  nothing  more  than  a  mere  quitclaim  deed. 

It  seems  to  me  that  the  requirement  of  the  law  that  the  full  value 
of  the  property  shall  be  paid  is  a  check  so  full  and  strong  as  to  pre- 
vent fraud,  and  that  an  heir  who  secures  the  full  worth  of  the  prop- 
erty, valued  as  an  absolute  and  vested  estate,  cannot  avoid  his  con- 
veyance, made  when  he  was  an  heir  presumptive,* 

» 

4  See  McCall  v.  Hampton,  98  Ky.  166,  32  S.  W.  406,  33  L.  R.  A.  266,  56  Am. 
St.  Rep.  335  (1895)  (assignment  held  void  at  law  and  in  e;iuity).  But  see  Steele 
V.  Frierson.  85  Tenn.  430,  434,  435,  3  S.  W.  649,  651  (1887).  where  Lnrton,  J., 
for  the  court,  said:  "Even  at  law  the  sale  of  an  interest  in  the  lands  of  an 
ancestor  living  has  been  enforced,  but  generally  by  aid  of  the  operation  of 
the  doctrine  of  estoppel  springing  from  the  covenants  in  the  deed.  The  argu- 
ment that  the  assignment  now  under  discussion  [made  in  part  payment  of 
an  antecedent  debt]  contains  no  covenants  might  be  effective  in  a  court  of 
law;  but,  regardless  of  the  doctrine  of  estoppel,  such  an  assignment  or  sale 
is  operative  in  equity  as  an  equitable  assignment  of  a  future  interest,  and 
upon  the  expectancy  being  converted  into  a  vested  interest  will  be  enforced 
by  courts  of  equity."  See,  also,  Olendening  v.  Wyatt,  54  Kan.  523.  38  Pac. 
792,  33  L.  R.  A.  278  (1895) ;  Crum  v.  Sawyer.  132  111.  443,  24  N.  E.  956  (1890); 
Fritz's  Appeal,  160  Pa.  156,  28  Atl.  642  (1894);  McDonald  v.  McDonald.  58 
N.  C.  211,  75  Am.  Dec.  434  (1859). 

A  conveyance  to  a  stranger,  made  by  the  prospective  heir  while  the  ances- 
tor is  alive,  is  held  by  some  courts  to  be  a  fraud  on  the  ancestor,  if  the  latter 
is  ignorant  of  the  conveyance. 

"The  ancestor,  having  no  knowledge  of  the  existence  of  the  contract,  is 
induced  to  submit  his  estate  to  the  disposition  of  the  law,  which  had  desig- 
nated the  defendant  as  an  heir.  The  defendant's  agreement  with  the  plain- 
tiff is  to  substitute  him  as  a  coheir  with  himself  to  his  uncle's  estate.  The 
uncle  is  thus  made  to  leave  a  portion  of  his  estate  to  Boynton,  a  stranger, 
without  his  knowledge,  and  consequently  without  any  such  intention.  This 
Lord  Hardwicke  calls  a  deceit  on  the  ancestor.  And  what  is  the  conse- 
quence of  deceits  of  this  kind  upon  the  public?  Heirs,  who  ought  to  be 
under  the  reasonable  advice  and  direction  of  their  ancestor,  who  has  no  other 
influence  over  them  than  what  arises  from  a  fear  of  his  displeasure,  from 
which  fear  the  heirs  may  be  induced  to  live  industriously,  virtuously,  and 
prudently,  are,  with  the  aid  of  money  speculators,  let  loose  from  this  salutary 
control,  and  may  indulge  in  prodi::aliti'.  idleness,  and  vice;    and  taking  care, 


Ch.6) 


THE    TRANSFER    OF    EXPECTANCIES.  493 


by  hypocritically  preserving  appearances,  not  to  alarm  their  ancestor,  may 
go  on  trafficking  with  his  expected  bounty,  malcing  it  a  fund  to  supply  the 
waste  of  dissipation  and  extravagance.  Certainly  the  policy  of  the  law  will 
not  sanction  a  transaction  of  this  kind,  from  a  regard  to  the  moral  habits  of 
the  citizens.  But  when  it  is  considered  that  a  contract  of  this  kind  is  a 
mere  wager,  In  a  case  where  there  are  no  principles  by  which  the  value  of 
the  chances  may  be  estimated,  so  as  to  ascertain  Avhether  it  be  unconscionable 
or  reasonable,  and  therefore,  if  valid  in  any  case,  it  may  be  valid  in  all  cases, 
public  policy  has  additional  inducements  to  discountenance  it.  as  dangerous 
to  faith  and  fair  dealing."  Parsons,  C.  J.,  in  Boynton  v.  Hubbard.  7  Mass. 
112,  121.  122  (1810). 

See.  also.  Gilpin  v.  Williams,  25  Ohio  St.  2S3  (1874).  The  assent  of  the 
ancestor  (Fitch  v.  Fitch,  8  Pick.  [Mass.]  480  [1829] :  Jenkins  v.  Stetson.  9 
Allen  [Mass.]  128  [1864] ;  Curtis  v.  Curtis.  40  Me.  24,  6.3  Am.  Dec.  651  [18-50]), 
or  notice  to  him  without  objection  on  his  part  (Fuller  v.  Parmenter,  72  Vt. 
362,  47  Atl.  1079  [1900]),  dispenses  with  this  obiection ;  and  in  Hale  v.  Hol- 
lon.  90  Tex.  427,  39  S.  W.  287.  36  L,.  R.  A.  75,  59  Am.  St.  Rep.  819  (1897), 
the  knowledge  and  assent  of  the  ancestor,  who  was  insane,  was  held  to  be 
unnecessary.  On  the  validity  of  a  sale  of  an  expectancy  by  a  prospective 
heir,  see  33  L.  R.  A.  266,  note;   56  Am.  St.  Rep.  339,  note. 


PART  III 

THE  PROBATE   OF  WILLS  AND   THE  ADMINIS- 
TRATION OF  ESTATES 


CHAPTER  1 

THE  GRANT  AND   REVOCATION  OF  PROBATE   AND  OF 

ADMINISTRATION 


SECTION  1.— THE  JURISDICTION  TO  ISSUE  LETTERS 


In  re  ZEPH'S  ESTATE. 

(Supreme  Court,  General  Term,  Third  Department,  1888.    50  Hun,  523,  3  N.  T. 

Supp.  460.) 

Ingalls,  J.  In  November,  1887,  Edward  Zeph  was  an  inhabitant 
of  Schenectady  county,  in  this  state.  He  was  indicted,  tried,  and 
convicted  of  the  crime  of  murder  in  the  second  degree,  and  sentenced 
to  the  state-prison  for  hfe,  and  is  now  in  prison  under  such  sentence. 
Fidel  Zeph,  the  only  brother  of  such  convicted  person,  applied  to  such 
surrogate  for  letters  of  administration  upon  the  estate  of  such  pris- 
oner, which  were  denied  by  the  surrogate,  upon  the  ground  that  he 
possessed  no  jurisdiction  to  grant  such  letters,  as  the  said  Edward 
Zeph  was  still  living.  We  are  convinced  that  the  decision  of  the  sur- 
rogate was  correct. 

The  contention  of  the  counsel  for  the  appellant  is  that  by  force  of 
such  conviction  and  judgment  thereon  the  said  Edward  Zeph  became 
and  is  civilly  dead,  and  that  his  estate  became  the  subject  of  adminis- 
tration, the  same  as  though  he  were  actually  dead.  We  are  satisfied 
that  the  provisions  of  the  Code  of  Civil  Procedure,  from  which  sur- 
rogates derive  their  authority  to  grant  letters  of  administration,  have 
no  application  to  a  case  of  civil  death,  but  apply  only  to  cases  of  ac- 
tual death.  It  will  be  perceived  by  referring  to  section  2060  of  the 
Code  of  Civil  Procedure,  and  the  following  sections  upon  that  sub- 
ject, that  whenever  mention  is  made  of  the  estate  upon  which  ad- 

(494) 


Ch.  1)  GRANT   AND   REVOCATION.  405 

ministration  may  be  granted,  the  word  "decedent"  is  employed;  as, 
for  instance,  in  said  section  2660  the  expression  is  found:  "and  of 
the  next  of  kin  of  the  decedent;"  in  section  2661,  "that  the  decedent 
left  no  will."  The  same  term  is  to  be  found  in  section  2663  and  sec- 
tion 2665.  We  think  that  the  word  "decedent,"  as  thus  employed  in 
framing  the  statute,  was  intended  by  the  law-makers  to  be  understood 
and  applied  in  the  usual  and  ordinary  sense  of  the  term.  Webster 
defines  the  word  "decease"  as  follows:  "To  depart  from  this  life; 
to  die."    The  word  "decedent"  is  defined:    "A  deceased  person." 

There  is  nothing  in  the  statute,  which  we  discover,  which  in  the 
slightest  degree  favors  a  construction  that  civil  death  was  intended 
to  be  included  as  a  ground  for  granting  such  administration.  Indeed, 
the  entire  proceedings  in  regard  to  administering  the  estates  of  de- 
ceased persons  seem  to  negative  the  idea  that  civil  death  was  intended 
to  be  included  within  the  cases  provided  for  by  such  statute.  Such 
right  to  administration  should  not  be  extended  by  implication,  doubt- 
ful construction,  or  judicial  legislation.  If  it  should  be  deemed  safe 
and  judicious  to  include  civil  death  as  a  ground  for  granting  such 
letters  of  administration,  the  legislature  must  furnish  the  remedy,  and 
not  the  court.  The  effect  of  imprisonment  for  life  upon  the  civil 
rights  of  the  prisoner  was  considered  in  Avery  v.  Everett,  36  Hun,  6 ; 
and  upon  appeal  to  the  court  of  appeals  the  subject  was  elaborately 
discussed,  and  the  decision  of  that  court  is  to  be  found  in  110  N.  Y. 
317,  18  N.  E.  148,  1  L.  R.  A.  264,  6  Am.  *St.  Rep.  368.  We  understand 
such  decision  to  be,  upon  principle,  adverse  to  the  contention  of  the 
appellant's  counsel  herein. 

It  v/as  suggested  by  such  counsel,  upon  the  argument,  that  the  dis- 
cussion of  that  question  in  the  court  of  appeals  should  be  regarded  as 
obiter.  We  do  not  so  regard  it,  as  the  question  considered  was  in- 
volved in  the  case  discussed  by  the  members  of  the  court,  and  con- 
curred in  generally  by  all  the  judges  present,  except  Judge  Earl,  who 
delivered  a  dissenting  opinion.  Under  such  circumstances,  we  must 
regard  such  question  as  within  the  determination  of  that  court  in  that 
case,  and,  so  far  as  it  applies  upon  the  question  under  consideration  in 
this  case,  as  conclusive  herein. 

The  order  of  the  surrogate  should  be  affirmed.     All  concur.* 

1  On  the  administration  of  the  estates  of  persons  civilly  dead,  see  1  "Woer- 
ner's  American  Law  of  Administration  (2d  Ed.)  §  213.  Even  if  in  In  re 
Zeph's  Estate,  the  state  statute  had  provided  for  the  administration  of  the 
estates  of  persons  civilly  dead,  the  question  of  the  constitutionality  of  such 
statutes  would  remain.  Bearing  upon  the  latter  question  are  the  decisions 
as  to  the  administration  of  the  estates  of  living  persons.  The  doctrines  on 
that  matter  are  well  stated  in  New  York  Life  Ins.  Co.  v.  Chittenden,  134 
Iowa.  613,  616  112  N.  W.  9G,  98,  11  L.  R.  A.  (N.  S.)  233,  120  Am.  St.  Rep. 
444  (1907),  as  follows: 

"It  seems  to  be  conclusively  settled  by  adjudications  that  a  probate  court 
acquires  no  jurisdiction  by  proceeding  to  administer  on  the  estate  of  a  per- 
son on  the  ground  that  he  is  dead  if  in  fact  he  is  alive,  and  such  proceedings 
are  entirely  invalid,  and  any  judgments  or  orders  made  in  pursuance  thereof, 
and  any  action  talien   thereunder,   are  absolutely  void  as   against  the  per- 


4:96  PROBATE   AND    ADMINISTRATION.  (Part  3 

GAY  et  al.  v.  SANDERS. 

(Supreme  Court  of  Georgia,  1897.    101  Ga.  601,  28  S.  B.  1019.) 

Simmons,  C.  J.^  The  paper  upon  which  the  defendant  relied  as 
giving  authority  for  his  becoming  executor  purported  to  be  a  last 
will  and  testament,  but  was  attested  by  only  one  witness.  As  a  will 
it  was  void.  "All  wills  (except  nuncupative  wills)  disposing  of  re- 
alty or  personalty  shall  be  attested  and  subscribed  in  the  presence  of 
the  testator  by  three  or  more  competent  witnesses."  Civ.  Code,  § 
3272.  And  in  the  case  of  Thornton  v.  Chisholm,  20  Ga.  338,  this 
court  held  that  an  instrument  attested  by  two  witnesses  only  was  void 

son  who  is  erroneously  adjudged  to  be  dead.  Witliout  citing  tlie  many  author- 
ities supporting  this  proposition,  it  is  sufBicient  to  say  that  any  such  proceed- 
ing, if  sustained,  would  result  in  depriving  the  person  erroneously  adjudged 
to  be  dead  of  his  proi:)erty  without  due  process  of  law.  Scott  v.  McNeal,  154 
U.  S.  34,  14  Sup.  Ct.  1108,  38  L.  Ed.  896.  But,  in  the  exercise  of  its  jurisdic- 
tion over  property  within  the  state,  it  may  be  provided  that  after  the  absence 
of  the  owner  uinheard  of  for  a  specified  period  such  property  may  be  adminis- 
tered upon  in  the  same  form  of  proceeding  as  is  provided  for  administration 
upon  the  property  of  a  person  deceased,  and  such  administration  will  be  valid 
as  against  the  absentee  and  all  persons  interested,  although  he  is  in  fact 
not  dead.  Cunnius  v.  Reading  School  District,  198  U.  S.  458,  25  Sup.  Ct.  721, 
49  L.  Ed.  1125.  Section  3307  of  our  Code  provides  for  such  an  administra- 
tion on  the  estate  of  one  who  has  absented  himself  from  the  state  and  con- 
cealed his  whereabouts  from  his  family  for  a  period  of  seven  years,  and  under 
the  decision  last  above  cited  we  have  no  doubt  that  this  section  is  constitu- 
tional and  provides  for  a  proceeding  which  may  properly  he  resorted  to  in 
such  cases,  and  which  is  conclusive  on  the  absentee  and  those  claiming  under 
him.  The  administration  granted  as  to  the  property  of  .Tarvis  w;is  in  accord- 
ance with  the  provisions  of  this  section,  and  we  think  it  was  valid.  Waldeck 
as  administrator  had  the  right,  therefore,  to  receive  from  the  plaintiff  the 
proceeds  of  the  policies  on  Jarvis'  life  so  far  as  such  proceeds  were  payable  to 
his  administrator." 

A  late  case  giving  a  statute  for  the  administration  of  the  estates  of  absen- 
tees retroactive  effect  Is  Savincrs  Bank  of  Baltimore  v.  Weeks,  110  Md.  78, 
72  Atl.  475,  22  L.  R.  A.  (N.  S.)  221  (1909). 

The  authorities  are  collected  in  4  L.  R.  A.  (N.  S.)  944,  note;  15  L.  R.  A. 
(N.  S.)  051,  note;    14  Am.  &  Eng.  Ann.  Cas.  148,  note. 

In  Lavin  v.  Emigrant  Industrial  Savings  Bank  (C.  C.)  1  Fed.  641  (1880),  an 
ancillary  administration  in  New  York  on  the  estate  of  a  person  who  turned 
out  to  be  alive  was  held  to  be  ineffective  to  protect  persons  making  payments 
to  the  aincillary  administrator,  although  the  original  administration  in 
Rhode  Island  was  under  a  statute  like  that  In  New  York  Life  Ins.  Co.  v. 
Chittenden,  supra.  That  was  because  the  New  York  statute  contemplated  the 
administration  of  the  estates  of    decedents  only. 

Community  Property.— In  the  state  of  Washington,  where  community  prop- 
erty is  recognized,  the  whole  community  estate  Is  subject  to  adrainistrntion 
upon  the  death  of  either  spouse,  and  not  merely  the  half  interest  of  the  dece- 
iient.  See  Magee  v.  Big  BeSid  Land  Co.,  51  Wash.  406,  99  Pac.  16  (1909),  and 
cases  cited.  But  the  administration  of  only  the  undivided  half  of  the  one 
dying  cannot  be  collaterally  attached.  Wiley  v.  Verhaest,  52  Wash.  475,  100 
Pac.  10O8  (1909).  And  it  has  been  hold  that  after  an  executor  hns  been  ap- 
pointed under  the  will  of  the  deceased  husband  disposing  of  his  half  interest 
in  the  community  property,  as  by  statute  he  may  do,  the  court  cannot  grant, 
on  application  of  the  wife,  administration  of  the  whole  community  property. 
In  re  Guye's  Estate,  54  Wash.  264,  103  Pac.  25  (1909). 

2  The  statement  of  facts  is  oniitttMl,  and  part  only  of  the  opinion  is  given. 


Ch.  1)  GRANT   AND    REVOCATION.  497 

as  a  will.  A  judgment  of  the  court  of  ordinary,  ordering  the  probate 
of  such  a  paper,  attested  by  one  witness  only,  gives  that  paper  no  effect 
as  a  will  in  any  proceeding  in  which  its  validity  may  be  called  in 
question.  The  court  of  ordinary  is  without  jurisdiction  to  render  such 
judgment,  which  is,  therefore,  void.  "The  will  *  *  *  had  been 
proven  and  admitted  to  record,  and  yet  it  had  no  attesting  witnesses, 
as  appears  from  the  probate  itself.  It  is  conceded  that  it  had  no  sub- 
scribing witnesses.  The  will  was,  therefore,  utterly  void,  and  of  no 
effect.  It  was  competent,  therefore,  to  move  at  any  time  to  set  aside 
the  judgment  of  the  ordinary  admitting  this  paper  to  probate.  It  was 
a  nullity  upon  its  face,  and  in  favor  of  such  a  judgment  nothing  can 
be  presumed."  Hooks  v.  Stamper,  18  Ga.  471.  "A  will  attested  by 
only  two  witnesses  is  void,  and  can  derive  no  aid  from  probate  and 
being  admitted  to  record.  The  judgment  of  probate  is  not  merely  er- 
roneous, but  an  absolute  nullity  on  its  face.  No  motion  to  set  it  aside 
is  requisite,  nor  is  it  ever  too  late  to  urge  its  invalidity."  Cureton  v. 
Taylor,  89  Ga.  490,  15  S.  E.  643. 

2.  While  such  a  paper,  though  ordered  to  probate,  is  ineffective  as 
a  will,  yet  where  certain  heirs  at  law  of  an  intestate  agreed  in  writing 
to  its  probate  as  a  will,  and  under  such  agreement  it  was  so  probated 
by  the  ordinary,  and  a.  named  executor  proceeded  to  dispose  of  the 
estate  thereunder,  such  distribution  would,  because  of  the  agreement, 
be  binding  on  the  heirs  who  were  sui  juris  and  consenting  thereto, 
but  minor  heirs  of  the  intestate  would  be  in  no  way  bound  thereby. 
By  the  agreement,  those  heirs  who  (being  at  the  time  sui  juris)  entered 
into  it  are  estopped  to  contest  the  validity  of  the  paper  probated,  or 
to  attack  the  authority  of  the  executor  to  whose  appointment  they  have 
by  their  agreement  consented.  Clearly,  however,  this  cannot  apply  to 
minor  heirs,  even  though  they  may  have  entered  into  the  written  agree- 
ment, provided  they  revoke  their  act  within  reasonable  time  after  their 
majority.  A  fortiori,  a  minor  heir  is  not  bound  or  estopped  where 
he  was  not  a  party  to  the  agreement  in  question,  even  though  he  may, 
during  his  minority,  have  acquiesced  in  the  arrangements  made,  and 
raised  no  objection  to  them.  These  minor  heirs  being  not  bound  by 
the  agreement,  the  defendant  was,  as  to  them,  executor  de  son  tort, 
and  liable  under  section  3310  of  the  Civil  Code.     *     *     * 

Judgment  reversed.     All  the  Justices  concurring. 
Cost.  Wills— 32 


4:98  PROBATE    AND    ADMINISTRATION.  (Part  3 


EWING  V.  MALIvISON  et  al. 

(Supreme  Court  of  Kansas,  1902.    65  Kan.  484,  70  Pac.  369,  93  Am.  St.  Rep. 

299.) 

Pollock,  J.'  John  A.  Whitcraft  died  at  the  residence  of  his 
nephew,  Horace  H.  Standish,  in  Wyandotte  county,  on  the  6th  of 
January,  1898.  At  the  date  of  his  death  he  was  the  owner  of  two 
certificates  of  deposit,  of  $1,000  each,  issued  by  the  First  National 
Bank  of  Emporia;  also  real  estate  and  other  personal  property  in 
Lyon  county.  For  many  years  prior  to  his  death  Whitcraft  had  been 
a  resident  of  Lyon  county. 

On  the  19th  day  of  January,  1898,  Horace  H.  Standish  filed  his  peti- 
tion in  the  probate  court  of  Lyon  county,  praying  his  appointment  as 
administrator  of  the  estate  of  Whitcraft.  On  the  same  day  John  W. 
Logan  and  others  filed  their  petition  praying  for  the  appointment  of 
W.  F.  Ewing  as  administrator  of  such  estate.  These  petitions  each 
alleged  the  death  of  Whitcraft,  late  of  Lyon  county,  Kan.,  deceased; 
that  he  died  leaving  no  last  will  and  testament,  so  far  as  the  petition- 
ers knew  or  believed ;  and  that  he  died  seised  of  money  in  bank,  mort- 
gages, and  real  estate  in  Lyon  county,  Kan.  On  the  21st  day  of  Jan- 
uary there  was  a  hearing  upon  these  applications,  and  that  of  Standish 
for  his  appointment  was  denied,  and  that  of  Logan  and  others  for  the 
appointment  of  Ewing  was  granted.  Ewing  was  appointed,  letters 
of  administration  were  issued  to  him,  and  he  qualified  and  gave  bond 
as  such  administrator. 

Thereafter,  on  the  13th  day  of  February,  Standish  made  application 
to  the  probate  court  of  Wyandotte  county  for  probate  of  an  alleged 
verbal  will  of  Whitcraft,  and  for  the  appointment  of  defendant  in 
error  Mallison  as  administrator  with  will  annexed.  To  this  proceed- 
ing, Ewing,  as  administrator,  appeared  in  the  probate  court  of.  Wyan- 
dotte county,  filed  his  plea  in  abatement,  alleging  his  prior  appoint- 
ment and  qualification  as  administrator  by  the  probate  court  of  Lyon 
county,  and  want  of  jurisdiction  in  the  probate  court  of  Wyandotte 
county  to  make  the  appointment  prayed.  Upon  a  hearing  this  plea 
was  overruled,  and  it  was  found  that  Whitcraft  was  at  the  date  of 
his  death  a  resident  of  Wyandotte  county.  Thereafter  an  order  was 
made  admitting  the  nuncupative  will  to  probate,  and  appointing  de 
fendant  in  error  Mallison  administrator  with  will  annexed.  No  ap- 
peal was  taken  from  the  proceedings  of  either  probate  court. 

This  action  was  brought  by  Mallison,  as  administrator  with  will  an- 
nexed, to  recover  from  the  receiver  of  the  First  National  Bank  oi 
Emporia,  then  insolvent  and  in  the  hands  of  Morton  Albough,  re- 

»  Part  only  of  the  opinion  is  given. 


Ch.    1)  GRANT   AND    REVOCATION.  499 

ceiver,  by  order  of  the  comptroller  of  the  currency,  upon  the  certif- 
icates of  deposit.  Evving,  as  administrator,  was  made  party  defend- 
ant, and  answered,  setting  up  his  appointment  by  the  probate  court  of 
Lyon  county,  his  qualification  under  such  appointment,  and  his  right 
to  the  funds  of  the  estate.  Plaintiff  replied,  pleading  an  adjudication 
by  the  probate  court  of  Wyandotte  county,  and  an  estoppel  of  Ewing 
to  claim  under  this  appointment.  There  was  judgment  for  plaintiff. 
Defendant  Ewing  brings  error.     *     *     * 

It  is  a  principle  of  universal  application,  essential  to  the  orderly  ad- 
ministration of  justice,  in  order  to  avoid  conflict  between  tribunals 
of  coequal  authority,  that  the  court  that  first  acquired  jurisdiction 
shall  be  allowed  to  pursue  it  to  the  end,  to  the  exclusion  of  others, 
and  that  it  will  not  permit  its  jurisdiction  to  be  impaired  or  subverted 
by  a  resort  to  some  other  tribunal.     *     *     * 

The  statute  (Gen.  St.  1901,  §  2806)  provides  "that  upon  the  de- 
cease of  any  inhabitant  of  this  state,  letters  testamentary  or  letters 
of  administration  on  his  estate  shall  be  granted  by  the  probate  court 
of  the  county  in  which  the  deceased  was  an  inhabitant  or  resident  at 
the  time  of  his  death."  The  words  "inhabitant"  and  "resident"  are 
usually  synonymous.  Bouv.  Law  Diet,  subject,  "Residence";  Lee  v. 
City  of  Boston,  2  Gray  (Mass.)  490.  Hence  but  one  court  was  pos- 
sessed of  jurisdiction  to  administer  the  estate  of  deceased, — the  pro- 
bate court  of  the  county  of  his  residence  at  the  date  of  death. 

But  if  it  were  possible  to  assume  that  either  the  probate  court  of 
Lyon  county  or  the  probate  court  of  Wyandotte  county  might  have 
rightfully  acquired  jurisdiction  over  this  estate  for  the  purpose  of 
appointing  an  administrator  or  proving  a  will,  the  action  taken  by  the 
Lyon  county  probate  court  being  first  in  point  of  time,  if  in  its  nature 
judicial  and  that  court  in  fact  had  jurisdiction,  it  will  retain  such 
jurisdiction  to  the  end,  to  the  exclusion  of  jurisdiction  in  the  probate 
court  of  Wyandotte  county,  unless  the  appearance  of  the  administra- 
tor appointed  by  the  probate  court  of  Lyon  county  in  the  probate 
court  of  Wyandotte  county  to  contest  the  jurisdiction  of  that  court 
may  be  held  to  have  deprived  the  probate  court  of  Lyon  county  of 
jurisdiction  once  acquired,  or  estops  the  administrator  appointed  by 
the  Lyon  county  probate  court  from  asserting  non jurisdiction  in  the 
Wyandotte  probate  court.  That  the  action  of  a  probate  court  in  ap- 
pointing an  administrator  of  an  estate  is  in  its  nature  judicial,  and, 
where  jurisdiction  obtains,  not  subject  to  collateral  attack,  would  seem 
to  be  well  settled  by  this  court.     *     *     * 

Upon  authority,  therefore,  two  propositions  are  clear:  (1)  The 
granting  of  letters  of  administration  by  a  probate  court  is  the  exercise 
of  judicial  authority,  and  the  letters  granted,  if  regular  in  form,  are 
prima  facie  evidence  of  the  regularity  of  the  prior  proceedings;  (2) 
such  letters  are  void  if  the  court  making  the  appointment  had  no  juris- 
diction to  grant  the  letters. 


500  PROBATB   AND    ADMINISTRATION.  (Part  3 

The  controversy  in  the  court  below  did  not  arise  upon  an  appeal 
from  an  order  revoking  the  letters  of  administration  granted  by  either 
probate  court.  The  letters  of  both  contending  parties  stand  unrevoked. 
As  the  case,  however,  arose  upon  the  conflicting  claims  of  two  persons 
pretending  to  represent  the  estate,  each  holding  letters  of  administra- 
tion, and  as,  under  the  law,  it  is  impossible  for  more  than  one  probate 
court  of  the  state  to  rightfully  claim  jurisdiction  over  the  estate  of  a 
deceased  resident,  or  be  permitted  to  administer  such  estate,  it  was 
the  duty  of  the  trial  court  to  determine  which  of  the  two  contesting 
parties  rightfully  claimed  the  assets  of  the  estate  in  litigation. 

The  essential  jurisdictional  facts  required  by  the  statute  are  (1) 
the  death;  (2)  an  estate  to  administer;  (3)  the  residence  or  inhabit- 
ancy of  the  deceased  at  the  time  of  his  death.  It  is  conceded  the 
death  occurred;  an  estate  is  left  to  be  administered;  hence,  unlike 
prior  cases  in  this  court  in  which  administration  proceedings  have 
been  declared  void,  the  jurisdictional  facts  warranting  administration 
in  some  court  stand  admitted.  The  sole  question  in  dispute,  over  which 
the  conflicting  claims  to  jurisdiction  arose  is,  of  what  county  was  the 
deceased  an  inhabitant  or  resident  at  the  time  of  his  death?  This 
identical  question  of  fact,  of  necessity,  must  have  been  presented  to 
and  determined  by  the  probate  court  of  Lyon  county,  for,  where  juris- 
diction depends  upon  the  finding  of  a  particular  fact  alleged  or  essen- 
tial to  support  jurisdiction,  the  exercise  of  jurisdiction  implies  the 
finding  of  such  fact.  Erwin  v.  Lowry,  7  How.  172,  12  L.  Ed.  655 ; 
Wyatt's  Adm'r  v.  Steele,  26  Ala.  639.  Again,  the  determination  of 
this  fact  by  that  court  was  first  in  point  of  time.  Its  proceedings  are 
in  due  form  of  law.  A  copy  of  the  letters  issued  are  found  in  the  rec- 
ord. They  are  regular,  and-  to  this  court  and  all  other  courts  are 
prima  facie  evidence  of  the  regularity  of  all  prior  proceedings  includ- 
ing the  jurisdiction  of  the  court  to  issue  the  same. 

If  in  the  case  at  bar,  as  in  the  case  of  Bank  v.  Wilcox,  15  R.  I.  258, 
3  Atl.  211,  2  Am.  St.  Rep.  894,  cited  by  counsel  for  defendants  in 
error,  it  stood  admitted  in  the  record  that  Whitcraft  was  not  in  fact  a 
resident  of  Lyon  county  at  the  date  of  his  death,  or  if  the  record  con- 
tained a  finding  of  such  fact  from  the  evidence,  a  want  of  jurisdiction 
in  the  probate  court  of  Lyon  county  would  appear,  and  we  would  be 
justified  in  holding  its  proceedings  void.  But  no  such  admission  or 
finding  appears  in  the  record.  True,  it  was  found  by  the  probate 
court  of  Wyandotte  county  that  the  deceased  at  the  time  of  his  death 
was  a  resident  of  Wyandotte  county,  and  as  a  consequence  the  probate 
court  of  Lyon  county  was  without  jurisdiction.  And  because  of  such 
determination  the  trial  court  refused  to  receive  any  evidence  as  to  the 
actual  residence  of  the  deceased  at  the  date  of  his  death,  but  held  the 
proceedings  in  the  probate  court  of  Wyandotte  county  res  judicata 
and  conclusive.  If,  however,  the  proceedings  in  the  probate  court  of 
Lyon  county  were  not  conclusive  upon  the  question  of  jurisdiction  in 


Oh.    1)  GRANT    AND    REVOCATION.  501 

that  court,  no  more  were  the  proceedings  in  the  probate  court  of  Wy- 
andotte county,  unless  the  proceedings  in  that  court  were  affected  by 
the  appearance  therein  of  plaintiff  in  error. 

The  place  of  residence,  like  the  question  of  death  or  the  existence 
of  an  estate  to  be  administered,  is  a  cohateral,  jurisdictional  question 
of  fact ;  and,  the  actual  fact  of  residence  by  the  deceased  in  the  coun- 
ty of  the  court  at  the  time  of  death  being  essential  to  uphold  the  juris- 
diction of  a  probate  court,  it  is  not  concluded  by  the  decision  of  the 
court  that  such  fact  does  exist,  but  it  may  be  inquired  into  in  a  proper 
collateral  proceeding  for  the  purpose  of  showing  want  of  jurisdiction 
in  the  court  making  the  determination.  This  is  the  general  rule  as 
to  judgments  in  this  state.  Mastin  v.  Gray,  19  Kan.  458,  37  Am.  Rep. 
149 ;    Pray  v.  Jenkins,  47  Kan.  599,  28  Pac.  716. 

The  true  rule  appears  to  be:  "Where  the  jurisdiction  depends  upon 
some  collateral  fact  which  can  be  decided  without  going  into  the  case 
on  its  merits,  then  the  jurisdiction  may  be  questioned  collaterally  and 
disproved,  even  though  the  jurisdictional  fact  be  averred  of  record, 
and  was  actually  found  in  evidence  by  the  court  rendering  the  judg- 
ment. But  on  the  other  hand,  where  the  question  of  jurisdiction  is 
involved  in  the  question  which  is  the  gist  of  the  suit,  so  that  it  cannot 
be  decided  without  going  into  the  merits  of  the  case,  then  the  judg- 
ment is  collaterally  conclusive,  because  the  question  of  jurisdiction 
cannot  be  retried  without  partly,  at  least,  retrying  the  case  on  its 
merits,  which  is  not  permissible  in  a  collateral  proceeding  unless  other 
parts  of  the  record  show  affirmatively  that  the  finding  cannot  be  true." 
17  Am.  &  Eng.  Enc.  Law,  1084,  1085;  Bank  v.  Wilcox,  supra;  Beck- 
ett V.  Selover,  supra  [7  Cal.  215,  68  Am.  Dec.  237]. 

We  are  therefore  of  the  opinion,  upon  this  branch  of  the  case,  that 
the  district  court  erred  in  refusing  to  permit  an  inquiry  into  the  actu- 
al residence  of  the  deceased  at  the  time  of  his  death,  and  in  holding 
the  proceedings  had  in  the  probate  court  of  Wyandotte  county  res 
judicata. 

The  remaining  question,  is  plaintiff  in  error  estopped  from  assert- 
mg  jurisdiction  in  the  court  appointing  him,  and  from  denying  the 
jurisdiction  of  the  Wyandotte  probate  court?  becomes  easy  of  solu- 
tion. If  the  Lyon  county  probate  court  had  jurisdiction,  the  Wyan- 
dotte court  did  not  have,  and  any  proceeding  therein,  or  order  made, 
was  void,  and  any  participation  therein  was  binding  upon  no  one. 
On  the  other  hand,  if  the  probate  court  of  Wyandotte  county  had 
jurisdiction,  the  proceedings  therein  were  valid  and  conclusive  because 
res  judicata.  Jurisdiction  vests  in  the  probate  court  of  the  county  of 
the  residence  of  the  deceased  at  the  time  of  his  death.  This  essential, 
collateral,  jurisdictional  fact  is  concluded  by  the  finding  of  neither 
court,  but  is  the  question  left  open  for  separate  determination.  For 
upon  the  determination  of  this  fact  depends  the  right  of  either  pro 
bate  court  to  take  any  step  or  make  any  valid  order  in  relation  to  the 


502  PROBATE    AND    ADMINISTRATION.  (Part  3 

estate  of  deceased,  whether  it  be  the  appointment  of  an  administrator 
or  the  proof  of  a  will. 

It  follows,  the  judgment  will  be  reversed  for  further  proceedings  in 
conformity  with  this  opinion.* 


In  re  LOW  HAM'S  ESTATE.     In  re  ECCLES'  ESTATE.     In  re 

MURRAY'S  ESTATE. 

(Supreme  Court  of  Utah,  1906.    30  Utah,  436,  85  Pac.  445.) 

McCarty,  J.5  *  *  *  On  March  30,  1905,  William  R.  Lowham, 
a  resident  of  the  state  of  Wyoming,  filed  his  petition  in  the  district 
court  of  Weber  county,  Utah,  praying  that  letters  of  administration 
of  the  estate  of  Joseph  P.  Lowham  be  issued  to  one  A.  I.  Stone.  The 
petition  alleges  in  substance  that  on  Nov.  13,  1905,  at  Evanston,  Wyo., 
Joseph  P.  Lowham  died  intestate;  that  deceased  left  an  estate  in 
Weber  county,  Utah,  consisting  of  a  cause  of  action  against  the  Union 
Pacific  Railroad  Company  for  injuries  resulting  in  his  death;  that 
deceased  at  the  time  the  injuries  were  received,  and  at  the  time  of  his^ 
death  was  a  resident  of  Wyoming.  Then  follows  the  names  and  ages 
of  the  heirs  at  law  of  deceased.  It  further  appears  that  at  the  time 
the  petition  was  filed,  the  petitioner  was  the  administrator  of  the  de- 
ceased in  the  state  of  Wyoming.'   Letters  of  administration  were  duly 

4  The  cases  pro  and  contra  are  collected  In  18  L.  R.  A.  242,  note;  81  Am. 
St.  Rep.  .^)4,S-5.52.  note.  See,  also,  Balsewicz  v.  C,  B.  &  Q.  R.  R.,  240  111.  23S, 
88  N.  E.  734  (1909). 

"The  rule  in  America  is  universal  that  administration  may  be  granted  in 
any  state  or  territory  where  unadministered  personal  property  of  a  deceased 
person  is  found,  or  real  property  subject  to  the  claim  of  any  creditor  of  the 
deceased,  and  that  probate  of  the  will  of  any  deceased  person  may  be  granted 
in  any  state  Avhere  he  leaves  personal  or  real  property.  As  between  the  several 
courts  within  the  same  state  or  sovereignty,  jurisdiction  attaches  primarily 
to  that  tribunal  which  is  invested  with  probate  powers  for  the  county  or  ter- 
ritorial district  which  includes  the  domicile  of  the  testator  or  intestate  at 
the  time  of  his  death,  without  regard  to  the  place  of  his  death  or  situs  of  his 
property.  To  grant  letters  on  the  estate  of  a  deceased  person  the  probate 
court  niust  find  as  a  fact,  and  thus  judicially  determine,  that  the  deceased  had 
his  domicile  in  the  county  or  territorial  district  over  which  the  jurisdiction  of 
the  court  extends  (or,  if  a  nonresident  of  the  state,  that  he  left  property 
there),  for  othei-wise  the  court  would  have  no  jurisdiction  to  grant  letters,  or 
take  probate  of  a  will.  It  was  formerly  held  Un  many  states  that,  notwith- 
standing this  finding  and  adjudication  by  the  court,  proof  might  be  made  in 
a  collateral  proceeding  showing  that  such  finding  and  adjudication  was 
erroneous,  and  that  as  a  matter  of  fact  the  decedent  was  at  the  time  of  his 
death  domiciled  in  a  different  county,  and  that  in  such  case  the  grant  of  let- 
ters was  void  ab  initio  for  the  want  of  jurisdiction.  But  the  more  reasonable 
doctrine  Is  gaining  ground,  and  is  now  held  in  nearly  all  the  states,  that 
letters  so  granted,  while  they  are  voidable  when  properly  assailed,  are  valid 
until  revoked  in  a  direct  proceeding."  1  Woerner,  American  Law  of  Admin- 
istration (2d  Ed.)  p.  439,  §  204. 

That  the  court  first  getting  jurisdiction  keeps  It  to  the  exclusion  of  all 
others,  see  In  re  Davis.  149  Cal.  485,  87  Pac,  17  (1906) ;  Anderson  v.  Walter, 
78  Kan.  781,  99  Pac.  270  (1908). 

»  Part  of  the  opinion  Is  omitted. 


Ch.    1)  GRANT    AND    REVOCATION. 


503 


and  regularly  issued  to  A.  I.  Stone  by  the  district  court  of  Weber 
county,  as  prayed  for  in  said  petition. 

It  is  admitted  that  the  injuries  which  resulted  in  the  death  of  the 
deceased  were  sustained  by  him  in  the  state  of  Wyoming,  and  that 
letters  of  administration  were  obtained  in  the  district  court  of  Weber 
county,  Utah,  for  the  sole  and  only  purpose  of  bringing  suit  in  this 
state  against  the  railroad  companies  mentioned,  to  recover  damages 
for  the  death  of  decedent.     *     *     * 

Appellant's  first  contention  is  that  the  right  created  and  given  by 
the  statute  of  Wyoming,  to  recover  damages  for  the  death  of  a  person 
caused  by  the  wrongful  act  of  another  in  that  state,  is  not  such  an 
asset  of  the  estate  of  the  deceased  as  will  authorize  the  appointment 
of  an  administrator  to  bring  suit  to  recover  damages  for  death  caused 
by  such  wrongful  act. 

Section  3448,  Rev.  St.  Wyo.  1899,  provides:  "Whenever  the  death 
of  a  person  shall  be  caused  by  wrongful  act,  neglect  or  default,  and 
the  wrongful  act,  neglect  or  default  is  such  as  would  (if  death  had  not 
ensued)  have  entitled  the  party  injured  to  maintain  an  action  to  recover 
damages  in  respect  thereof,  then  in  every  such  case  the  person  who,  or 
the  corporation  which,  would  have  been  liable,  if  death  had  not  en- 
sued, shall  be  liable  to  an  action  for  damages  notwithstanding  the 
death  of  the  person  injured,  and  although  the  death'  shall  have  been 
caused  under  such  circumstances  as  amounts  in  law  to  murder  in  the 
first  or  second  degree,  or  manslaughter." 

Section  3449  of  the  same  act  provides  that  "every  such  action  shall 
be  brought  by  and  in  the  name  of  the  personal  representative  of  such 
deceased  person ;  and  the  amount  recovered  in  every  such  action  shall 
be  distributed  to  the  parties  and  in  the  proportions  provided  by  law, 
in  relation  to  the  distribution  of  personal  estates  left  by  persons  dying 
intestate  *  *  *  and  the  amount  so  recovered  shall  not  be  subject 
to  any  debts  or  liabilities  of  the  deceased." 

While  a  claim  for  damages  for  death  by  wrongful  act  is  not  a  gen- 
eral asset  of  the  estate  under  the  foregoing  provisions  of  the  Wyom- 
ing statutes,  we  think  it  is  a  sufficient  asset  of  the  estate  for  the  pur- 
pose of  appointing  an  administrator.  This  court,  in  effect,  so  held  in 
the  case  of  In  re  Estate  of  Tasanen,  25  Utah,  396,  71  Pac.  984.  The 
doctrine  declared  in  that  case  is  not  only  in  harmony  with  the  great 
weight  of  authority,  but  is,  we  think,  supported  by  the  better  reason. 
Brown  v.  Railroad  Co.,  97  Ky.  228,  30  S.  W.  639 ;  Findlay  v.  Railroad 
Co.,  106  Mich.  700,  64  N.  W.  732;  Hutchins  v.  Railroad  Co.,  44 
Minn.  5,  46  N.  W.  79 ;  Merkle  v.  Bennington,  68  Mich.  133,  35  N. 
W.  846;  Griswold  v.  Griswold,  111  Ala.  572,  20  South.  437;  Rail- 
way Co.  V.  Reeves,  8  Ind.  App.  667,  35  N.  E.  199 ;  Robertson  v.  Rail- 
road Co.,  122  Wis.  66,  99  N.  W.  433,  66  L.  R.  A.  919,  106  Am.  St. 
Rep.  925 ;  Morris  v.  Railroad  Co.,  65  Iowa,  727,  23  N.  W.  143,  54 
Am.  Rep.  39;   11  A.  &  E.  Ency.  Law  (2d  Ed.)  828. 

Having  determined  that  a  claim  for  damages  for  death  by  wrong- 


504  PROBATE    AND    ADMINISTRATION.  (Part  S 

ful  act,  under  the  statutes  of  Wyoming,  is  at  least  a  special  asset  of 
the  estate,  the  next  question  presented  is,  can  the  right  thus  given 
by  the  Wyoming  statute  be  enforced  in  this  jurisdiction  through  the 
medium  of  an  administrator  appointed  by  the  courts  of  this  state? 
This  question  was  squarely  presented  and  decided  by  this  court  in  the 
case  of  Utah  Sav.  &  Trust  Co.  v.  Diamond  Coal  &  Coke  Co.,  26  Utah, 
299,  73  Pac.  524. 

In  view  of  the  elaborate  discussion  of  this  branch  of  the  case  by 
appellant,  in  its  brief,  we  have  again  given  the  subject  careful  con- 
sideration, and  while  there  appears  to  be  some  conflict  in  the  authori- 
ties on  this  question,  the  doctrine  declared  in  the  case  of  Utah  Sav. 
&  Trust  Co.  V.  Diamond  Coal  &  Coke  Co.,  supra,  is  upheld  by  the  de- 
cided weight  of  authority.  Morris  v.  Chicago,  R.  I.  &  P.  R.  Co.,  65 
Iowa,  727,  23  N.  W.  143,  54  Am.  Rep.  39 ;  Stewart  v.  B.  &  O.  R.  Co., 
168  U.  S.  447,  18  Sup.  Ct.  105,  42  L.  Ed.  537 ;  Dennick  v.  Railroad 
Co.,  103  U.  S.  11,  26  L.  Ed.  439;  Boston  &  M.  R.  Co.  v.  Hurd,  108 
Fed.  116,  47  C.  C.  A.  615,  56  L.  R.  A.  193;  Louisville  &  N.  R.  R. 
v.  Shivell's  Adm'r  (Ky.)  18  S.  W.  944,  13  Ky.  Law  Rep.  902;  Sar- 
gent v.  Sargent,  168  Mass.  420,  47  N.  E.  121. 

It  being  admitted  that  the  proceedings  leading  up  to  the  issuance 
of  letters  of  administration  to  A.  I.  Stone  were  in  accordance  with 
the  provisions  of  the  statute  regulating  such  proceedings,  we  are  of 
the  opinion,  and  so  hold,  that  the  district  court  of  Weber  county  had 
jurisdiction  to  issue  said  letters,  and  that  it  did  not  err  in  dismissing 
appellant's  petition  to  have  them  revoked.  The  judgment  is  affirmed, 
with  costs.* 


HADDOCK  V.  BOSTON  &  M.  R.  CO. 

(Supreme  Judicial  CJourt  of  Massachusetts,  18S8.    146  Mass.  155,  15  N.  E.  495, 

4  Am.  St.  Rep.  295.) 

Devens,  J.'  The  first  question  discussed  by  the  appellant  is  whether 
the  probate  court  has  authority,  as  matter  of  law,  to  admit  a  will  to 
probate  63  years  after  the  death  of  the  testator;  and,  incidentally, 
whether  there  is  any  limit  of  time  after  the  death  of  the  testator,  sub- 
sequent to  which  the  court  has  no  such  authority. 

8  On  the  right  of  action  for  negligent  killing  as  an  asset  to  give  jurisdic- 
tion, see  1  L.  R.  A.  (N.  S.)  885,  note;  De  Valle  Da  Costa  v.  Southern  Pac. 
Co.  (C.  C.)  160  Fed.  216  (19n8).  For  a  general  discussion  of  assets  to  give 
Jurisdiction,  see  24  L.  R.  A.  684,  note. 

That  the  objection  to  the  granting  of  letters  where  the  only  asset  is  thev 
right  of  action  for  negli;;ent  killing  cannot  be  raised  in  the  action  for  dam- 
ages, see  Reiter-ConnoUy  Mfg.  Co.  v.  Hamlin,  144  Ala.  192,  40  South.  280 
(19<J6).  But  see  Hoes  v.  N.  Y.,  N.  H.  &  H.  R.  R.  Co.,  173  N.  Y.  435,  66  N.  E.  119 
(1903).  Under  the  Minnesota  statute  the  probate  court  has  no  jurisdiction  to 
OTder  a  distribution  of  funds  recovered  in  the  action  for  wrongful  death. 
Mayer  v.  Mayer,  106  Minn.  484,  119  N.  W.  217  (1909).  Compare  Thompson  & 
Lively  V.  Mann,  65  W.  Va.  648,  64  S.  E.  720,  22  L.  R.  A.  (N.  S.)  1094  (1909). 

T  The  statement  of  facts  and  a  part  of  the  opinion  are  omitted. 


Ch.    1)  GRANT    AND    REVOCATION.  505 

In  Shumway  v.  Holbrook,  1  Pick.  117,  11  Am.  Dec.  153,  the  ques- 
tion was  whether  a  will  not  admitted  to  probate  was  admissible  in  evi- 
dence. It  was  held  that  it  was  not;  but  it  is  said:  "If  a  will  can  be 
found,  it  may  be  proved  in  the  probate  court  at  any  time,  in  order  to 
establish  a  title  to  real  estate.  It  differs  from  an  administration  of 
personal  property,  which  cannot  be  originally  granted  upon  the  estate 
of  any  person  after  20  years  from  his  decease."  In  the  course  of 
the  argument,  Mr.  Justice  Jackson  alluded  to  a  case  in  Essex  coun- 
ty, perhaps  30  years  before,  where  it  was  found  that  a  widow  must 
hold  land  under  a  will  which  had  not  been  proved.  The  will  hav- 
ing been  offered  for  probate,  the  judge  of  probate  declined  to  al- 
low it,  as  more  than  20  years  had  elapsed  since  the  death  of  the  tes- 
tator, and,  on  appeal,  his  decision  was  reversed,  and  the  will  admit- 
ted to  probate.  The  research  of  the  counsel  for  the  appellant  has 
established  that  the  case  thus  alluded  to  was  that  of  Dennis  v.  Bearse 
(Essex),  and  has  supplied  us  with  as  satisfactory  an  account  of  it, 
drawn  from  the  papers  on  file,  as  they  will  afford.  It  is  a  case  to 
which  some  weight  must  be  attached,  as  it  brought  into  question, 
directly,  the  authority  of  the  court  of  probate,  and  the  appeal  was  to 
the  full  bench  of  the  Supreme  Court,  which  reversed  the  original  de- 
cree. While  no  opinion  appears  to  have  been  written,  it  could  not 
but  have  been  a  carefully  considered  case,  as  it  reversed  the  opinion 
of  the  judge  of  probate  as  to  the  extent  of  his  jurisdiction.  The  will 
thus  admitted  to  probate  was  so  admitted  36  or  37  years  after  its  date. 
How  long  after  the  death  of  the  testator  does  not  clearly  appear,  al- 
though some  of  the  papers  found  indicate  that  it  was  more  than  30 
years  after. 

In  Marcy  v.  Marcy,  6  Mete.  360,  the  question  was  whether  there 
was  sufficient  evidence  that  a  will,  which  became  operative  43  years 
before,  had  been  admitted  to  probate,  so  that  it  could  be  read  in  evi- 
dence. The  court  held  that  there  was  such  evidence;  adding,  "and 
on  evidence  like  the  present,  it  would  be  the  duty  of  the  probate  court 
to  establish  the  will,  if,  for  want  of  form,  the  probate  should  have  been 
considered  so  defective  that  the  will  had  been  rejected  as  evidence  in 
its  present  state." 

In  Waters  v.  Stickney,  12  Allen,  1,  90  Am.  Dec.  122,  where  it  was 
held  that  the  probate  court,  14  years  after  admitting  a  will  to  probate, 
might  admit  to  probate  a  codicil,  written  upon  the  same  leaf,  which 
had  escaped  attention,  and  was  not  passed  upon  at  the  time  of  the 
probate  of  the  original  will,  it  is  said  by  Mr.  Justice  Gray,  citing  the 
above  cases:  "It  has  been  directly  adjudged  by  this  court  that  a  will 
may  be  proved  even  30  years  after  the  death  of  the  testator,  although 
original  administration  could  not,  by  statute,  be  granted  after  20 
years ;"  and  again,  "If  no  will  had  been  proved,  the  lapse  of  time  would 
not  prevent  both  will  and  codicil  from  being  proved  now." 

While  it  is  true  that  in  neither  of  these  cases  has  it  been  decided  that 
a  will  disposing  of  lands  can  be  admitted  to  probate  after  60  years,  yet 


506  PROBATE    AND    ADMINISTRATION.  (Part  3 

there  is  no  suggestion  in  any  of  them  that  there  is  any  limitation  of 
time  to  such  proof,  and  the  language  used  is  quite  explicit  to  the  con- 
trary. In  view  of  the  decisions  made,  and  the  repeated  expressions 
directly  relevant  to  the  cases  considered,  used  in  argument  by  judges 
of  this  court,  we  cannot  treat  this  inquiry  as  the  appellant  desires  we 
should — as  practically  a  new  question.  We  must  deem  it  one  that 
has  been  fairly  passed  upon  and  decided. 

It  may  be  that  the  inconveniences  which  might  arise  from  the  pro- 
bate of  a  will  many  years  after  the  death  of  the  testator  are  such  that 
a  statute  limiting  the  period  might  be  properly  enacted.  That  course 
has,  in  some  states,  been  adopted.  Rev.  Conn.  1875,  c.  11,  §§  21-23 ; 
Rev.  St.  Me.  c.  64,  §  1.  But  statutes  of  limitation  are  arbitrary,  and 
the  considerations  which  apply  to  positive  laws  of  this  character  are 
legislative,  rather  than  judicial.  In  many  instances,  where  a  great 
length  of  time  has  elapsed  after  the  death  of  a  testator,  possessory 
titles  will  have  been  acquired  which  will  prevail  against  the  record. 
What  is  due  to  the  just  rights  of  the  devisees  is  to  be  considered  with 
reference  to  other  rights  of  property,  or  to  the  repose  of  the  com- 
munity;  but  such  considerations  belong  to  the  domain  of  legislation. 

So  long  as  one  can  produce  the  evidence  necessary  to  obtain  the 
probate  of  a  will,  we  can  see  no  legal  reason  why  one  who  relies  upon 
it  should  not  be  allowed  to  prove  it  as  he  would  be  permitted  to  prove 
a  deed,  however  ancient,  under  which  he  claimed  title.  The  fact  that 
he  could  not  offer  in  evidence  a  will  not  admitted  to  probate,  as  he 
might  an  ancient  deed,  would  certainly  afford  no  reason  why  its  au- 
thenticity should  not  be  established  in  the  probate  court  by  its  regular 
course  of  procedure.    *     *    * 

Cause  to  stand  for  further  proceedings.* 

8  July  18.  1877,  a  petition  for  probate  of  the  will  of  one  who  died  about 
March  19,  1GG3,  was  filed  in  New  York.  The  application  was  denied,  on 
the  ground,  among  others,  that  it  would  be  presumed  that  due  administra- 
tion was  had,  though  no  record  of  it  could  be  found.  Van  Giessen  v.  Bridg- 
ford,  83  N.  Y.  348  (1881).  A  limitation  period  for  granting  probate  or  admin- 
istration Is  fixed  in  some  states.  See  46  Am.  Dec.  439,  note.  That  under  such 
a  statute  a  codicil  such  as  existed  in  Waters  v.  Stickney,  cited  in  the  prin- 
cipal case,  cannot  be  admitted  to  probate  with  the  will  after  the  expiration  of 
the  statutory  period,  see  Estate  of  Elizabeth  Adsit,  Myr.  Prob.  (Cal.)  206 
(1879).  But  it  is  uncertain  what  effect  such  a  statute  would  have  on  a  situa- 
tion like  that  in  Ffinch  v.  Combe,  [1894]  P.  191,  where  20  years  after  a  will 
was  admitted  to  probate,  with  blank  spaces  where  obliterations  had  been 
made,  it  was  shown  to  be  possible  to  read  the  words  under  the  obliterations, 
and  in  consequence  the  words  were  admitted  to  probate.  In  the  absence  of  a 
statute  to  the  contrary,  the  prior  probate  of  an  earlier  will  does  mot  pre- 
clude the  probate  of  a  later  will,  when  it  Is  discovered.  Cousens  v.  Advent 
Church,  93  Me.  292,  45  Atl.  43  (1899). 


\ 


Ch.    1)  GRANT    AND    REVOCATION.  507 


SECTION  2.— THE  NECESSITY  AND  EFFECT  OF  PROBATE 
AND  OF  ADMINISTRATION* 


RICHARDS  V.  PIERCE. 
(Supreme  Court  of  Michigan,  18S0.    44  Mich.  444,  7  N.  W.  54.) 

Campbell,  J.  Plaintiff  brought  ejectment  for  certain  lands  in 
Shiawassee  county,  which  belonged  to  James  Wadsworth,  of  Living- 
ston county,  New  York,  and  were  devised  by  his  last  will  to  various 
persons,  from  whom  plaintiff"  derives  title.  These  devises  were  partly 
in  trust  and  partly  directly,  in  the  same  proportions  and  for  the  same 
beneficiaries  as  would  have  taken  the  property  by  descent.  The  testa- 
tor died  in  1844  and  his  will  was  proved  the  same  year  in  New  York, 
but  was  not  proved  in  Michigan  until  after  this  action  was  brought. 

The  only  question  argued  before  us  was  whether,  before  probate, 
ejectment  could  be  brought  by  devisees  or  by  those  to  whom  their 
rights  had  been  previously  transferred.  The  general  direction  given 
by  the  court  below  to  find  a  verdict  for  the  defendant  must  have  been 

*E}rFECT  OF  Probate  in  Common  Form  and  in  Solemn  Form— Statutory 
Methods  of  Probate  and  of  Contest.— "In  the  ISnglish  ecclesiastical  courts, 
which  had  exclusive  jurisdiction  of  wills  so  far  as  they  operated  upon  per- 
sonal property,  but  no  jurisdiction  in  respect  of  devises  of  real  estate,  there 
were  two  modes  of  obtaining  probate,  one  in  common  form  and  the  other  m 
solemn  form,  or  per  testes.  The  probate  was  said  to  be  in  common  form 
when  the  executor  presented  the  will  for  probate  in  the  absence  of  the  parties, 
and  without  citing  them,  proceeded  ex  parte  with  his  proof;  and  it  was 
said  to  be  in  solemn  form  when  those  in  interest  were  cited  to  be  present, 
and  full  proof  was  made  by  the  examination  of  witnesses.  TMien  a  will  was 
proved  in  common  form,  the  court  might  at  any  time  within  30  years  after 
probate,  of  its  own  motion  or  at  the  instance  of  the  next  of  km  or  other 
person  interested,  require  the  executor  to  prove  the  will  in  solemn  form. 

"In  the  United  States  there  is  a  general  similarity  of  practice  m  adminis- 
tering the  various  statutory  methods  of  probate  and  contest,  but  a  considerable 
diversity  in  their  technical  features.  In  some  of  the  states,  the  proceeding 
in  the  probate  court  upon  the  original  application  for  probate  is  entirely  ex 
parte ;  but  some  proof  of  the  will  other  than  the  oath  of  the  executor,  which 
was  sufficient  for  the  English  probate  in  common  form,  is  always  required. 
In  others,  a  notice  and  an  opportunity  for  a  contest  are  given,  formal,  or 
informal,  in  the  probate  court.  If  the  will  is  allowed  or  rejected  without 
a  contest,  or  after  a  contest  not  tried  by  jui-y,  an  appeal  may  usually  be 
taken  to  an  intermediate  appellate  court  having  a  jury,  where  the  case  is 
tried  de  novo,  and  this  remedy  is  sometimes  exclusive.  In  others,  after  a 
decree  of  the  probate  court  allowing  the  will,  a  retrial  may  be  had  upon 
petition  to  that  court  to  revoke  the  probate,  or  an  action  at  law  or  a  suit 
in  chancery  to  contest  the  validity  of  the  probated  will  may  be  brought  in 
another  court  within  the  county.  These  methods  of  contest  by  appeal,  by 
petition  to  revoke  the  probate,  or  by  original  action,  correspond  in  purpose- 
and  effect  to  the  probate  in  solemn  form  of  the  English  ecclesiastical  courts. 

"In  a  great  majority  of  the  United  States  the  probate  court  has  exclusive 
jurisdiction  to  admit  to  probate  wills  containing  devises  of  real  estate,  and 
such  wills  are  probated  and  contested  in  the  same  manner  as  wills  of  person- 
alty  alone."    16  Ency.  of  PI.  and  Pr.  993-996. 


508  PROBATE    AND    ADMINISTRATION.  (Part  3- 

given  under  misapprehension,  as  title  was  made  out  which  would  have 
been  valid  without  a  will,  to  a  large  share  of  the  estate.  But  this  seems 
to  have  escaped  the  notice  of  all  parties,  and  is  not  material  as  the 
case  stands. 

There  has  never  been  any  question  of  the  right  of  a  devisee  to  take 
his  estate  as  of  the  death  of  the  testator,  and  our  statutes  confine  de- 
scents, and  did  when  this  testator  died,  to  property  which  is  not  de- 
vised. Rev.  St.  1838,  p.  267.  That  this  is  so  for  all  purposes  except 
as  otherwise  provided  by  statute  is  not  doubted.  But  it  is  claimed  that 
the  declaration  of  section  30,  p.  275,  Rev.  St.  1838  (which  is  substan- 
tially the  same  as  in  subsequent  revisions),  that  "no  will  shall  be  effec- 
tual to  pass  either  real  or  personal  estate,  unless  it  shall  have  been 
duly  proved  and  allowed  in  the  probate  court,"  makes  every  devise 
take  effect  from  probate  and  not  earlier,  and  if  not  for  other  purposes, 
does  so  for  purposes  of  bringing  action.  As  probate  was  always  nec- 
essary to  enable  one  to  make  proof  of  title  of  personalty,  this  statute 
cannot  certainly  impose  any  greater  restrictions  on  realty  than  ex- 
isted before  on  personalty. 

There  were  undoubtedly  some  technical  rules  of  common-law  plead- 
ing which  required  an  executor  to  make  profert  of  his  letters  in  plead- 
ing. But  for  any  other  purpose  the  decisions  are  uniform  that  probate 
merely  furnished  the  means  of  establishing  by  a  peculiar  kind  of  rec- 
ord evidence  the  validity  of  an  existing  right ;  and  that  for  every  valu- 
able purpose  touching-  the  existence  and  transfer  of  title  the  probate 
was  retroactive,  and  had  the  same  effect  as  if  it  had  been  had  at  the 
time  of  the  testator's  death.  And  so  far  as  the  statutes  have  been 
applied  to  devises,  there  is  no  material  difference.  Upon  so  familiar 
a  rule  it  would  not  be  profitable  to  multiply  authorities,  and  a  few 
illustrations  will  suffice  as  to  the  condition  of  things  before  probate. 

The  executor  may  release  a  cause  of  action.  Co.  Lit.  292b.  He  may 
sell  goods.  Mayor  of  Norwich  v.  Johnson,  3  Mod.  92.  He  may  enter 
on  a  term  and  the  entry  be  good  though  he  die  before  probate.  3  Dyer, 
367.  He  may  sell  a  term  of  years,  though  he  die  before  probate,  and 
the  sale  will  stand.    Brazier  v.  Hudson,  8  Simons,  67. 

In  Wankford  v.  Wankford,  1  Salk.  299  and  notes,  the  doctrine  is 
quite  fully  discussed,  and  clearly  laid  down.  And  the  practical  result 
is  said  in  Brazier  v.  Hudson  to  be  that  subsequent  probate  validates 
all  acts  that  would  be  valid  after.  This  may  be  a  somewhat  broad 
statement,  but  it  is  certainly  true  for  most  purposes,  and  authorities 
might  be  multiplied  upon  it. 

In  the  United  States  the  rule  has  been  the  same.  After  probate  a 
conveyance  previous  thereto  by  a  devisee  has  been  held  valid.  Spring 
v.  Park-man,  3  Fairf.  127.  And  in  De  Wolf  v.  Brown,  15  Pick.  462, 
it  was  held  the  estate  devised  vested  immediately  both  as  to  realty 
and  personalty  on  the  death  of  testator,  so  as  to  authorize  suit  for  a 
taking  of  property  connected  with  a  farm  before  probate.  The  action 
«Jien  was  after  probate.    Both  these  cases  were  under  statutes  like  ours.. 


Ch.    1)  GRANT   AND    REVOCATION. 


509 


We  have  ourselves  passed  upon  the  question  as  to  the  immediate 
interest  of  a  legatee  in  a  mortgage  which  formed  part  of  an  estate  in 
realty  and  personalty  willed  to  her.  In  Sutphen  v.  Ellis,  35  Mich.  446, 
we  held  that  an  assignment  of  the  mortgage  made  by  the  legatee  who 
died  before  the  will  was  proved,  was  valid.  As  already  suggested, 
our  statute  puts  realty  and  personalty  on  the  same  footing  as  to  the 
necessity  of  probate.® 

In  3  Redfield  on  Wills,  23,  a  similar  doctrine  is  laid  down,  but  it  is 
suggested  there  as  well  as  in  some  other  authorities  that  no  action 
will  lie  before  probate,  and  this  seems  to  be  asserted  on  an  idea  that 
in  law  no  action  accrues  any  earlier.  We  think  this  is  a  misapprehen- 
sion. The  common-law  authorities  upon  pleading  require  profert  to 
be  made  in  the  declaration,  and  for  this  reason  it  is  often  said  probate 
must  then  have  been  taken  out.  But  we  do  not  find  any  doctrine  re- 
quiring probate  before  action  brought,  but  only  before  declaring.  In 
1  Salk.  302,  303,  before  referred  to,  it  is  said  that  an  action  may  be 
brought  before  probate,  but  plaintiff  cannot  declare.  Several  authori- 
ties are  collected  in  Comyn's  Dig.  "Administration,"  B,  9,  to  the  effect 
that  an  action  brought  before  probate  is  made  good  by  subsequent 
probate,  "for  it  is  sufficient  if  the  probate  appears  upon  the  declara- 
tion." 

In  Thompson  v.  Reynolds,  7  B.  &  C.  123,  the  true  doctrine  was  more 
distinctly  explained.  In  that  case  upon  an  issue  made  by  plea  and 
replication  whether  the  plaintiff  was  executor  in  manner  and  form  as 
averred  in  his  declaration,  in  which  he  actually  made  profert  of  his 
letters,  he  was  allowed  to  recover,  although  the  proof  showed  the  let- 
ters were  not  granted  until  some  months  after  the  declaration  was  filed. 
In  equity  also  it  has  been  held  that  proof  of  probate  before  the  hearing 

»  "The  probate  court  has  decided  that  the  will  was  such  as  was  entitled  to 
probate.  That  decision  is  final  at  this  time,  and  cannot  be  the  subject  of  col- 
latei-al  attack.  In  England  the  probate  of  wills  bequeathing  personal  estate 
belongs  to  the  ecclesiastical  court,  and  no  probate  of  a  will  devising  real  es- 
tate is  necessary ;  the  real  estate  there  passing  immediately  to  the  heirs  at 
law  upon  the  death  of  the  owner.  Under  the  law  of  England  an  action  of 
ejectment  would  lie  by  a  person  claiming  to  be  owner  of  real  estate  under  a 
will,  against  the  heirs  at  law  who  have  taken  possession  of  the  real  estate  so 
devised  by  will;  but  that  was  because  there  had  been  no  adjudication  by 
the  court  as  to  the  status  of  the  property.  But  in  regard  to  the  personal 
estate,  under  the  English  law,  the  ecclesiastical  courts  having  jurisdiction  of 
the  probate  of  wills  regarding  such  property,  when  a  will  was  admitted  to 
probate  and  established,  then  such  decree  was  final,  and  could  not  be  attacked 
collaterally.  Under  the  laws  of  most  of  the  states  of  the  Union,  the  probate 
courts  have  been  given  jurisdiction  of  both  real  and  personal  property  of  a 
decedent;  and  the  decisions  are  uniformly  to  the  effect  that,  where  such  juris- 
diction is  given  to  probate  courts,  their  decrees  establishing  a  will  of  realty 
are  as  conclusive  as  the  decrees  of  the  ecclesiastical  courts  of  England  in 
regard  to  personal  property."  Beauchamp,  J.,  in  Ward  v.  Board  of  Com'rs, 
12  Okl.  274,  70  Pac.  381  (1902). 

In  New  York  probate  is  not  conclusive  as  to  realty.  Corley  v.  McElmeel, 
149  N.  Y.  228,  43  N.  E.  628  (1896) ;  Smith  v.  Ryan,  116  App.  Div.  397,  101  N. 
Y.  Supp.  1011  (1906). 


510  PROBATE    AND    ADMINISTRATION.  (Part  3 

is  sufficient,  althoug-h  occurring  during  the  litigation.  Humphreys  v. 
Humphreys,  3  P.  Wms.  349.    And  see  Comber's  Case,  1  P.  Wms.  768. 

It  appears  that  the  only  objection  that  has  been  urged  does  not  really 
go  to  the  right  of  action,  but  only  to  the  formalities  of  pleading ;  and 
that  this  forms  no  exception  to  the  rule  that  the  probate  relates  back. 
As  under  our  forms  of  pleading  the  plaintiff  in  ejectment  is  not  bound 
to  aver  the  character  of  his  title  except  as  to  its  extent,  there  is  no  room 
for  the  formal  objection,  which  has  never  even  in  personal  actions 
been  allowed  to  prevail  if  the  party  chose  to  make  proper  allegations, 
whether  true  or  false. 

We  think  the  plaintiff  had  a  right  to  bring  his  suit.  The  judgment 
must  be  reversed  with  costs  and  a  new  trial  granted.^** 


Appeal  of  WILLETTS. 
(Supreme  Court  of  Errors  of  Connecticut,  1SS2.     50  Conn.  330.) 

Appeal  from  a  decree  denying  the  probate  of  a  will.  The  follow- 
ing facts  were  found  by  the  court : 

Alice  Fowler  died  at  Greenwich,  in  this  state,  February  7,  1875. 
Soon  after  her  death,  the  court  of  probate  for  the  district  of  Green- 
wich granted  administration  upon  her  estate  to  one  William  C.  Field, 
and  in  the  decree  found  that  she  had  her  domicile  within  that  district 
at  the  time  of  her  death,  that  she  had  died  intestate  therein,  and  that 
at  the  time  of  her  death  she  had  goods  and  estate  whereof  adminis- 
tration appertained  to  that  court.  This  decree  was  passed  on  the  8th 
of  March,  1875. 

Alice  Fowler  at  the  time  of  her  death  left  an  instrument  purport- 
ing to  be  a  last  will  and  testament,  executed  December  6,  1874,  in 
Greenwich,  and  attested  by  two  witnesses  only,  in  accordance  with  the 
laws  of  the  state  of  New  York.^^ 

10  "In  this  "case  the  will  under  which  the  appellee  claimed  title  was  not 
probated  until  seven  years  after  the  death  of  Mary  Rodrigues,  the  testatrix. 
Nevertheless  the  interest  devised  by  the  will  to  the  appellee  took  effect  im- 
mediately upon  the  death  of  the  testatrix.  This  principle  is  clearly  settled 
by  the  case  of  Goodman  v.  Winter,  64  Ala.  410,  38  Am.  Rep.  13  (1879)." 
Dowdell.  C.  J.,  in  .Touart  v.  Rickert  (Ala.)  .50  South.  896,  897  (1909). 

11  The  Connecticut  statute  on  the  execution  of  wills  applicable  appears  to 
have  been  the  following:  "No  will  or  codicil  shall  be  valid  to  pass  any  es- 
tate unless  it  be  in  writing,  subscribed  by  the  testator,  and  attested  by  three 
witnesses,  all  of  them  subscribing  in  his  presence  and  in  the  presence  of 
each  other;  but  no  will  of  personal  estate  made  before  the  27th  day  of 
June,  1848,  shall  be  Invalid  if  rot  so  attested ;  and  all  wills  executed  according 
to  the  laws  of  the  state  or  counti-y  where  they  are  executed  may  be  admitted. 
to  probate  in  this  state  and  shall  be  effectual  to  pass  any  estate  of  the  tes- 
tator situated  In  this  state."  Gen.  St.  1875,  p.  309,  §  2.  In  1885  the  require- 
ment that  the  witnesses  subscribe  in  the  presence  of  each  other  was  omitted. 
Laws  1885,  d.  500.  §  131 :    Gen.  St.  1902,  §  293. 


Ch.    1)  GRANT    AND    REVOCATION.  511 

Later  the  courts  of  New  York,  on  motion  of  the  executors  named  in 
the  will,  and  upon  due  notice  and  citation  to  all  parties  concerned, 
found  that  Alice  Fowler,  at  the  time  of  her  death,  was  domiciled  in 
New  York,  and  admitted  the  will  to  probate.  The  executors  demand- 
ed the  estate  property  from  John  G.  Reynolds,  who  had  succeeded 
Field  as  administrator,  but  he  refused  to  deliver  it  to  them. 

This  application  for  probate  was  then  made  in  the  probate  court 
for  the  district  of  Greenwich,  it  being  based  upon  the  probate  in 
New  York. 

Pardee,  J.^^  It  is  urged  by  the  appellees  that  the  will  in  question 
is  not  valid  in  the  state  of  New  York  because  it  was  executed  in  this 
state;  that,  the  probate  court  in  this  state  having  first  decided  the 
question  as  to  the  domicil  of  the  testatrix  at  her  death,  it  was  not  in 
the  power  of  the  court  in  New  York  to  make  a  contrary  decision  which 
would  be  binding  on  the  probate  court;  and  that  our  statute  (Gen.  St. 
p.  369,  §  2),  providing  that  "all  wills  executed  according  to  the  laws 
of  the  state  or  country  where  they  were  executed  may  be  admitted 
to  prgbate  in  this  state  and  shall  be  effectual  to  pass  any  estate  of  the 
testator  situated  in  this  state,"  excludes  this  will. 

Presumably  the  probate  court  for  the  district  of  Greenwich  granted 
letters  of  administration  upon  the  estate  of  Alice  Fowler  without  no- 
tice to  any  person  in  interest,  at  the  request  perhaps  of  an  heir,  per- 
haps of  a  creditor,  upon  the  representation  that  she  died  intestate,  a 
resident,  and  leaving  estate  in  that  district ;  and  while  in  the  absence 
of  the  probate  there  of  her  will  this  grant  would  protect  the  adminis- 
trator in  taking  possession  of  the  estate  in  that  district  for  the  protec- 
tion of  creditors  there  and  ultimately  of  legatees  and  heirs,  yet  it  does 
not  bar  the  executors  named  in  a  will  subsequently  found  from  prov- 
ing in  legal  manner  and  before  the  proper  tribunal  in  the  state  of 
New  York  that  she  died  resident  there,  leaving  a  will  valid  according 
to  the  laws  of  that  state  for  the  purpose  of  passing  title  to  both  real 
and  personal  property ;  nor  does  it  bar  them,  having  duly  proved  the 
will  in  the  state  of  residence  at  death,  from  the  right  to  be  intrusted 
by  the  court  of  probate  in  Greenwich  with  ancillary  administration. 

It  is  not  a  matter  of  legal  necessity  that  a  grant  of  letters  of  ad- 
ministration should  control  the  disposition  of  an  estate  to  final  dis- 
tribution. Such  grant  must  yield  to  the  superior  force  of  proof  made, 
either  that  the  supposed  decedent  is  living,  or  that  he  left  a  valid  will 
subsequently  found,  or  that  he  died  resident  in  a  district  other  than 
that  assuming  jurisdiction. 

The  judgment  in  New  York  is  that  of  a  court  of  record,  of  general 
jurisdiction,  proceeding  according  to  the  common  law ;  in  other  words, 
of  a  court  having  full  power  to  investigate  and  decide  facts  and  called 
upon  in  due  course  of  law  so  to  do.     All  parties  to  the  proceeding 

5  2  The  statement  of  facts  is  abbreviated. 


532  PROBATE   AND    ADMINISTRATION.  ^  (Part  3 

before  us  were  either  voluntarily  or  upon  proper  compulsion  within 
the  jurisdiction  of  and  before  that  court. 

The  judgment  there  rendered  was  the  first  in  order  of  time  to  con- 
clude them  upon  the  question  as  to  the  place  of  residence  of  the  testa- 
trix at  the  time  of  her  death.  Since  its  rendition  none  of  them  have 
had  the  right  to  deny  in  any  court  the  fact  as  there  established.  They 
cannot  now  reopen  the  issue  there  made  and  determined  against  them. 
And  the  fact  that  upon  and  because  of  this  determination  of  the  ques- 
tion of  domicile  the  will  was  admitted  to  probate  in  the  state  of  New 
York,  conclusively  establishes,  so  far  as  the  parties  to  that  proceeding 
are  concerned,  in  all  courts,  that  it  is  the  will  of  a  person  there  resi- 
dent at  death^^  and  that  it  is  there  valid  both  as  to  real  and  personal 

18  But  in  Dallinger  v,  Richardson,  176  Mass.  77,  82,  57  N.  E.  224,  225 
(1900),  where  the  question  was  whether,  in  an  action  to  collect  taxes,  a 
finding  that  the  deceased  was  a  resident  of  Washington,  D.  C,  could  be  up- 
held, since  a  Massachusetts  probate  court,  in  admitting  the  will  of  deceased 
to  probate,  had  described  him  as  a  resident  of  Massachusetts,  Hammond,  J., 
for  the  court,  said:  "The  adjudication  of  the  probate  court  as  to  residence 
Is  conclusive  so  far  as  respects  its  own  jurisdiction,  but  no  further.  It  can- 
not be  held  to  shut  off  all  Inquiry  into  the  question  of  residence  when  that 
question  is  being  investigated  by  another  tribunal,  in  a  matter  not  involving 
the  validity  of  any  order  or  decree  of  that  court,  or  some  proceeding  there- 
under." See,  also.  Concha  v.  Concha,  L.  R.  11  App.  Cas.  541  (ISSG).  A 
similar  doctrine  has  been  laid  down  as  to  the  adjudication  as  to  testator's 
mental  capacity.  Brigham  v.  Fayerweather,  140  Mass.  411,  5  N.  E.  2G5 
(1886).  Moreover,  the  full  faith  and  credit  clause  of  the  federal  Consti- 
tution does  not  give  the  probate  adjudications  of  one  state  any  greater  effect 
in  a  sister  state.  See  Tilt  v.  Kelsey,  207  U.  S.  43,  28  Sup.  Ct.  1,  52  L.  Ed.  95, 
79  N.  W.  39  (1907)  where  it  is  held  that  the  full  faith  and  credit  due  the 
probate  proceedings  in  one  state  do  not  require  that  the  courts  of  another 
state  shall  be  bound  by  the  adjudication  of  the  former  as  to  the  domicile  of 
the  deceased.  See,  also,  Thormann  v.  Frame,  176  U.  S.  350.  20  Sup.  Ct.  446,  44 
L.  Ed.  500  (1900),  affirming  Frame  v.  Thormann,  102  Wis.  653  (1899),  and 
Overby  v.  Gordon,  177  U.  S.  214,  20  Sup.  Ct.  603,  44  L.  Ed.  741  (1900).  The 
probate  court  has  power  to  bind  all  the  world  as  to  the  res  before  it.  namely, 
the  property  of  the  deceased  within  the  state,  but  has  no  power  to  bind  the 
world  or  the  parties  to  the  proceeding  as  to  other  property,  or  as  to  the 
matter  of  domicile  where  that  comes  up  in  a  proceeding  in  the  same  or  an- 
other state  in  a  way  not  affecting  the  disposition  by  the  court  of  probate  of 
the  res  it  had,  though  it  has  been  held  that  one  state  may  recognize  the 
probate  decrees  of  another  state  as  conclusive. 

It  is  well  settled  that  the  full  faith  and  credit  clause  does  not  compel  one 
state  to  recognize,  so  far,  at  least,  as  real  property  within  its  own  limits 
is  concerned,  the  binding  force  of  probate  adjudications  in  another  state.  As 
was  said  by  the  Supreme  Court  of  Georgia  recently:  "Prior  to  1878,  and 
while  there  was  no  statutory  provision  for  the  i)robate  of  a  foreign  will, 
it  was  held  by  this  court  that  an  exemplified  copy  of  a  will  probated  in 
another  state  was  a  good  muniment  of  title  to  real  estate  in  Georgia,  al- 
though the  will  was  neitlier  proliatod  nor  recorded  in  this  state.  Doe  ex  dem. 
Dooley  v.  Roe  and  MacCurley,  31  Ga.  .193.  Counsel  for  defendants  in  er- 
ror ask  leave  to  review  this  case  on  this  point.  We  think  the  ruling  Is  op- 
posed to  the  almost,  If  not  quite,  universal  holdings  in  other  jurisdictions. 
It  seems  to  us  that  to  give  conclusive  effect  to  a  foreign  will  disposing  of 
rand  in  this  state  would  be  to  allow  courts  of  other  states  to  establish 
the  validity  of  a  will  disposing  of  land  In  Georgia.  The  learned  judge  who 
delivered  the  opinion  of  tlio  court  predicated  this  ruling  upon  the  act  of  Con- 
gress which  re<iuires  full  faith  and  credit  to  be  given  in  each  state  to  the 
records  and  judicial  proceedings  of  all  other  states.     But  this  provision  of 


Ch.    1)  GRANT    AND    REVOCATION.  513 

estate.    This  being  so,  the  executors  have  the  right  to  prove  it  in  this 
state  for  the  purposes  of  ancillary  administration. 

The  superior  court  is  advised  to  reverse  the  decree  of  the  probate 
court  of  Greenwich.* 


PLUME  V.  BEALE. 

(High  Court  of  Chancery,  1717.    1  P.  Wms.  388.) 

A  bill  was  brought  by  the  executor  of  Doctor  Plume,  to  be  relieved 
against  a  legacy  of  ilOO,  claimed  by  the  defendant  Beale,  as  given  by 
the  will  of  Doctor  Plume. 

the  federal  Constitution  and  the  act  of  Congress  applies  only  to  the  records 
and  proceedings  of  courts  so  far  as  they  have  jurisdiction,  and  is  not  to  be 
consti-ued  so  as  to  give  a  foreign  judgment  extraterritorial  effect  in  dispos- 
ing of  land  in  another  state.  Lindley  v.  O'Reilly,  supra  (50  N.  J.  Law,  6.36. 
15  Atl.  379,  1  L.  R.  A.  79,  7  Am.  St.  Rep.  802),  and  cases  cited.  We  think 
that  the  [Georgia]  act  of  1894,  providing  for  the  probate,  of  a  foreign  will  in 
this  state,  impliedly  repeals  the  ruling  announced  in  the  Dooley  Case  in  31  Ga. 
593;  but,  as  we  deem  the  ruling  there  made  to  be  unsound,  we  formally 
overrule  so  much  of  that  case  as  decides  that  an  exemplification  of  a  probate 
of  a  foreign  will  is  admissible  in  evidence  as  a  muniment  of  title  to  real 
estate  in  this  state,  although  the  will  was  neither  probated  nor  recorded  in 
this  state."  Atkinson,  J.,  in  Chidsey  v.  Brookes,  130  Ga.  218,  221,  60  S.  E. 
529,  530  (1008).  See  Robertson  v.  Pickrell.  109  U.  S.  COS  3  Sup.  Ct.  407,  27 
L.  Ed.  1049  (1883):  Soils  v.  Williams  (INIass.)  91  N.  E.  148  (1910).  On  the 
extraterritorial  effect  of  decrees  as  to  realty,  compare  Fall  v.  Eastin,  215  U. 
S.  1,  30  Sup.  Ct.  3,  54  L.  Ed.  ,  23  L.  R.  A.  (N.  S.)  924  (1909). 

Even  though  probate  in  the  state  of  the  testator's  domicile  is  deemed  con- 
clusive everywhere  as  to  personalty — Brock  v.  Frank,  51  Ala.  85  (1874)  and 
cases  cited  in  9  Am.  &  Eng.  Ann.  Cas.  422,  note — because  of  a  fiction  that,  no 
matter  what  the  actual  situs  of  the  personalty  is,  its  legal  situs  is  at  the 
domicile,  the  question  of  what  is  the  state  of  the  domicile  must  always  be 
open  in  a  state  where  It  has  not  been  litigated,  unless  a  valid  state  statute 
forecloses  the  question.  The  soundness  of  the  decision  in  Appeal  of  Willetts, 
supra,  would  therefore  seem  to  depend  upon  the  Connecticut  statute  quoted  in 
note  11.  ante.  It  has  been  held  that  a  state  may  by  statute  make  probate 
In  another  state  conclusive  both  as  to  personalty  found  in  the  enacting  state 
—Martin  v.  Stovall,  103  Tenn.  1,  52  S.  W.  296,  48  L.  R.  A.  130  (1899)— and 
as  to  realtv  situated  there.  Crippen  v.  Dexter,  13  Gray  (Mass.)  330  (1859) ; 
Babcock  v.  Collins.  60  Minn.  73.  61  N.  W.  1020.  51  Am.  St.  Rep.  503  (1895) : 
State  V.  District  Court.  34  Jlont.  96,  85  Pac.  866,  6  L.  R.  A.  (N.  S.)  617,  115 
Am.  St..  Rep.  510  (1906).  See,  also,  Stull  v.  Veatch  236  111.  207,  86  N.  E.  227 
(1908).  But  even  if  such  statutes  are  not  unconstitutional,  it  is  difhcult  to 
see  how  the  statute  quoted  in  note  11,  ante,  made  the  New  York  probate  of 
the  will  executed  in  Connecticut  and  not  valid  according  to  the  laws  of  Con- 
necticut conclusive  in  that  latter  state  as  to  the  domicile  of  the  testatrix  or 
as  to  anything  else. 

On  the  conclusiveness  in  a  domestic  court  of  a  foreign  will  duly  probated 
abroad,  see  48  L.  R.  A.  130,  note ;  6  L.  R,  A.  (N.  S.)  617,  note ;  9  Am,.  &  Eng. 
Ann.  Cas.  422.  note;  14  Am.  &  Eng.  Ann.  Cas.  977.  note:  113  Am.  St.  Rep. 
214,  note.     On  conflict  of  laws  as  to  wills,  see  2  L.  R.  A.  (N.  S.)  408,  note. 

*  In  In  re  Clark's  Estate,  148  Cal.  108.  82  Pac.  760,  1  L.  R.  A.  (N.  S.)  996.  113 
Am.  St.  Rep.  197  (1905),  it  was  held  that  under  the  California  statute  the 
will  of  a  resident  of  California,  proved  originally  in  another  state,  could 
not  thereafter  be  proved  in  California  as  a  foreign  will.  Full  probate  was 
required  in  California.  The  cases  are  collected  in  1  L.  R.  A.  (N.  S.)  996,  note ; 
7  Am.  &  Eng.  Ann.  Cas.  313,  note ;   113  Am.  St  Rep.  211,  note. 

Cost.  Wills— 33 


514  PROBATE    AND    ADMINISTRATION.  (Part  3 

The  defendant  Beale  was  no  relation  to  the  doctor,  nor  had  done 
him  any  service,  saving  that  now  and  then  she  had,  during  his  illness, 
brought  him  some  few  slight  cordials,  in  return  for  which,  the  doctor 
had  ordered  her  a  piece  of  plate. 

This  £100  legacy  was  interlined  in  the  will  by  a  different  hand,  and 
supposed  to  have  been  done  by  the  defendant  herself,  when  she  was 
left  in  the  room  alone  with  the  corpse,  in  which  room  the  will  was  left. 

But  forasmuch  as  the  will  was  proved  by  the  plaintiff  the  executor 
in  a  proper  court,  that  had  a  proper  jurisdiction,  (it  relating  only  to  a 
personal  estate,)  and  more  especially,  for  that  the  executor  might  have 
proved  the  will  in  the  spiritual  court,  with  a  particular  reservation  as 
to  this  legacy.  The  Court  [Lord  Chancellor  Cowper]  said  his  remedy 
must  be  there,  and  dismissed  the  bill  with  costs.^* 


CHAMPOLLION  v.  CORBIN  et  al. 

(Supreme  Court  of  New  Hampshire.    Sullivan,  1901.    71  N.  H.  78,  51  Atl.  674.) 

Chase,  J.^"  The  subject-matter  of  this  suit  is  10  shares  of  the 
capital  stock  of  the  Blue  Mountain  Forest  Association,  a  corporation 
organized  under  the  general  laws  of  the  state.  Although  the  property 
of  the  corporation  consists  largely  of  real  estate,  these  shares  are 
choses  in  action,  or  property  in  the  nature  of  choses  in  action — not 

14  "As  to  the  first  point,  It  is  undoubtedly  the  general  rule  both  in  Eng- 
land and  this  country  that  a  court  of  equity  will  not  entertain  jurisdiction 
of  a  bill  to  set  aside  a  will  or  the  probate  thereof.  ♦  •  *  And  one  of  the 
principal  reasons  assigned  by  the  equity  courts  for  not  entertaining  bills  on 
questions  of  probate  is  that  the  probate  courts  themselves  have  all  the  powers 
and  machinery  necessary  to  give  full  and  adequate  relief.  In  England,  after 
the  acts  of  Parliament  had  authorized  devises  of  real  estate,  the  same  posi- 
tion was  assumed  by  courts  of  equity  in  regard  to  such  devises;  it  being 
held  that  any  fraud,  illegality,  or  mistake  affecting  their  validity  could  be 
fully  investigated  and  redressed  in  the  courts  of  common  law,  where  only 
devises  were  cognizable.  An  occasional  exception,  or  apparent  exception,  to 
this  noninterference  of  courts  of  equity  with  wills  and  devises  is  found  in 
the  books ;  but  these  occasional  departures  from  the  rule  are  always  carefully 
placed  on  such  special  grounds  that  they  tend  rather  to  establish  than  to 
weaken  its  force.  *  *  *  It  has  also  been  held  that  where  a  person  ob- 
tains a  legacy  'by  inserting  his  own  name  in  the  will,  instead  of  that  of  the 
intended  legatee,  he  may  be  declared  a  trustee  for  the  latter.  Marriott  v. 
Marriott,  1  Strange,  GG6.  In  such  a  case  the  court  of  probate  could  not  fur- 
nish a  remedy,  suico  to  strike  the  be<iuest  out  of  the  will,  or  to  refuse  pro- 
bate of  it,  would  defeat  the  legacy  altogether;  and  that  court  is  incompetent 
to  declare  a  trust.  The  English  autliorities  are  fully  discussed  by  Lord 
Lyndhurst  in  Allen  v.  McPherson,  1  Phillips,  133,  and  by  him  and  Lords 
Cottenham,  Brougham,  Langdale,  and  Campbell,  in  the  same  case  on  appeal 
In  the  House  of  Lords.  1  H.  L.  C.  Wl."  Bradley,  J.,  in  Case  of  Broderick's 
Will,  21  Wall.  503,  509-511,  22  L.  Ed.  .''.99  (1874). 

On  whether  an  Intended  legatee,  who  fails  to  take  because  a  third  person 
fraudulently  procured  the  will  or  codicil  to  be  defectively  executed,  may  hold 
the  fraudulent  person  liable  in  a  tort  action,  see  Lewis  v.  Corbin,  195  Mass 
520,  81  N.  E.  248,  122  Am.  St.  Rep.  201  (1907). 

15  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


Ch.    1)  GRANT    AND    REVOCATION.  515 

realty.  1  Mor.  Corp.  §§  224,  225;  1  Cook,  Corp.  §  12;  1  Thomp. 
Corp.  §§  1066,  1070;   3  Thomp.  Corp.  §  3317. 

The  plaintiff's  alleged  title  to  the  shares  depends  solely  upon  the 
fact  that  he  is  the  only  child  of  the  late  Mary  C.  Champollion,  who, 
he  alleges,  was  the  owner  of  them  at  the  time  of  her  decease.  He  does 
not  claim  that  any  decree  has  been  made  in  the  course  of  an  adminis- 
tration of  her  estate  by  virtue  of  which  he  acquired  a  title,  but,  in  effect, 
says  that  the  law,  operating  upon  the  fact  that  he  is  her  only  child, 
transferred  her  title  to  him,  ex  proprio  vigore.  He  does  not  direct 
attention  to  any  particular  statutory  provision  which  operates  in  this 
manner,  but  seems  to  rely  upon  the  common  law. 

According  to  the  common  law,  personalty  did  not,  like  realty,  descend 
immediately  to  the  heir  upon  the  decease  of  the  owner,  but  passed  to 
the  personal  representative,  to  be  used  primarily  for  the  payment  of 
debts  and  other  charges  against  the  estate.  Anciently,  if  there  was  any 
surplus,  the  administrator  held  it  to  his  own  use.  The  first  statute  of 
distribution  was  22  &  23  Car.  H,  c.  10,  enacted  in  1670.  By  it,  the 
administrator  was  required  to  give  a  bond,  with  two  or  more  sureties, 
to  return  an  inventory ;  to  administer  the  goods,  chattels,  and  credits 
of  the  deceased  according  to  law ;  to  render  a  true  and  just  account  of 
his  administration  at  or  before  a  date  specified;  and  to  deliver  all  the 
rest  and  residue  of  the  goods,  chattels,  and  credits  which  should  be 
found  remaining  upon  settlement  of  his  accounts  unto  such  persons 
as  the  judge  should  by  decree,  pursuant  to  the  statute,  limit  and  ap- 
point. Archbishop  of  Canterbury  v.  Tappen,  8  Barn.  &  C.  151.  It 
provided  that  one  third  part  of  the  rest  and  residue,  or  "surplusage," 
was  to  go  to  the  widow,  if  any,  and  the  residue  in  equal  shares  to  the 
children  or  their  representatives,  making  due  allowance  for  advance- 
ments; or,  if  there  were  no  children  or  representatives  of  childen, 
one-half  was  to  go  to  the  widow,  and  the  residue  equally  to  the  next  of 
kindred  in  equal  degree  and  their  representatives.  H  there  was  no 
widow,  the  whole  was  to  be  distributed  to  the  children  or  next  of  kin- 
dred, as  the  case  might  be.    2  Kent,  Comm.  420. 

The  statutes  of  distribution  of  the  several  states  are  based  upon  this 
statute,  and  in  a  majority  of  the  states  the  distribution  is  to  the  same 
persons,  in  the  same  proportions,  and  subject  to  the  same  regulations 
in  substance.  Schouler  Ex'rs,  •§  495;  2  Kent,  Comm.  426.  The  provi- 
sions of  the  statute  of  this  state  are  very  nearly  the  same  as  those  of 
the  English  statute.    Pub.  St.  c.  188,  §  12;   Id.  c.  195,  §  10;  Id.  c.  196, 

§§  1»  6. 

If  Mrs.  Champollion's  domicile  was  in  this  state  at  the  time  of  her 
decease,  the  plaintiff  has  failed  to  allege  or  prove  that  he  has  acquired 
a  title  to  the  stock  in  question  under  the  statutes  of  the  state.  Until 
a  decree  of  distribution,  "neither  the  widow  nor  the  next  of  kin  has 
any  title  to  the  personal  estate,  and,  of  course,  can  maintain  no  action 
to  recover  it."  Weeks  v.  Jewett,  45  N.  H.  540,  542 ;  Bartlett  v.  Hill, 
69i  N.  H.  197,  45  Atl.  144.     If  her  domicile  was  elsewhere,  as  the 


516  PROBATE    AND    ADMINISTRATION.  (Part  3 

plaintiff's  allegations  and  the  defendants'  admissions  tend  to  show,  ad- 
ministration upon  her  estate  here,  if  any  there  were,  would  be  merely 
ancillary,  and  the  plaintiff's  right  to  any  balance  of  property  in  the  ad- 
ministrator's hands  would  depend  upon  the  laws  of  her  domicile. 
Goodall  V.  Marshall,  11  N.  H.  88,  35  Am.  Dec.  473 ;  Leach  v.  Pillsbury, 
15  N.  H.  137 ;  Stark  v.  Parker,  56  N.  H.  181 ;  Leonard  v.  Putnam, 
51  N.  H.  247,  12  Am.  Rep.  106.  If  the  court  were  at  liberty  to  search 
for  and  ascertain  those  laws,  they  are  prevented  from  doing  so  by  the 
failure  of  the  plaintiff  to  furnish  definite  information  of  the  facts 
upon  which  domicile  depends.  In  either  contingency,  the  plaintiff  does 
not  show  that  he  is  entitled  to  maintain  the  suit. 

It  should  also  be  borne  in  mind  that  it  is  only  the  "surplusage,"  or 
the  portion  of  the  personal  estate  "remaining  in  the  hands  of  the  ad- 
ministrator on  settlement  of  his  administration  account,"  that  is  sub- 
ject to  distribution  under  the  statutes  of  distribution;  and,  for  anything 
that  appears  in  the  case,  the  stock  in  question,  if  it  belonged  to  Mrs. 
Champollion,  may  be  required  to  pay  debts  or  charges  against  her  es- 
tate. 

It  appears  that  other  parties  are  interested  in  the  questions  as  to 
which  the  defendants  in  their  answers  pray  for  direction.  Mrs.  Bor- 
rowe,  a  child  of  Mr.  Corbin,  and  presumably  interested  in  his  estate, 
denies  that  Mrs.  Champollion  had  any  title  or  right  to  the  stock  in 
question.  She  further  claims  that  the  Corbin  stock  in  the  corporation 
should  be  sold  without  regard  to  the  restraining  provisions  of  the  by- 
laws on  the  subject.  The  corporation  itself,  and  all  the  other  stock- 
holders, are  interested  in  the  latter  question.  If  the  court  of  this  state 
is  authorized  to  comply  with  the  defendants'  prayer — a  point  that  has 
not  been  considered — it  would  not  undertake  to  do  so  until  these  par- 
ties were  given  an  opportunity  to  be  heard  upon  the  questions.  *     *     * 

Case  discharged.    All  concurred.^* 

i«  On  the  right  of  the  sole  distributee  to  sue  for  personalty,  where  there 
has  been  no  administration,  see  112  Am.  St.  Reji.  731,  note ;  23  Am.  Dec.  200, 
note.  Pending  the  appointment  of  an  administrator,  next  of  liin  have  been 
allowed  injunctions  and  receivers  to  protect  the  personalty  from  misappro- 
priation by  strangers.  Buchanan  v.  Buchanan,  73  N.  J.  Eq.  544,  68  Atl.  780 
(1908). 

Where  by  statute  administration  cannot  be  granted  after  a  certain  period 
of  time,  the  title  to  personal  property  vests  in  the  distributees  at  the  expira- 
tion of  that  period  without  administration,  and  they  may  recover  the  prop- 
erty by  action.  Phinney  v.  Warren,  52  Iowa,  332,  1  N.  W.  522,  3  N.  W.  157 
(1879);  In  re  Acken's  Estate  (Iowa)  123  N.  W.  187  (1909).  Compare  State 
V.  Superior  Court,  48  Wash.  141,  92  Pac.  M2  (1907).  See,  also,  Duvall  v. 
Healy  Lumber  Oo.  (Wash.)  107  Pac.  357  (1910),  where  there  was  a  similar 
statute  as  to  real  estate. 

"The  goods  of  an  intestate  used  to  belong  to  the  ordinary  until  adminis- 
tration was  granted.  After  the  probate  court  was  established,  they  passed 
to  the  judge  of  that  court.  They  now,  I  take  it,  pass  either  to  all  the 
Judges  of  the  Supreme  Court  or  to  the  judges  of  the  Probate  Division.  The 
Question  can  hardly  arise  unless  some  one  during  the  interval  steals  the 
goods.  In  such  a  case  It  would  be  necessary  in  the  indictment  to  specify 
the  person  whose  goods  he  stole;    and  I  take  it  that,  to  use  the  technical 


Ch.    1)  GRANT    AND    REVOCATION.  517 

BROWN  V.  BAXTER  et  al. 

(Supreme  Ck>urt  of  Kansas,  1908.    77  Kan.  97,  94  Pac.  155.) 

Graves,  J.^'^     Three  assignments  of  error  have  been  made:      (1) 

The  plaintiff  is  not  the  owner  of  the  note  and  mortgage  or  the  real 

party  in  interest.     (2)  The  cause  of  action  is  barred  by  the  statute 

of  limitations.  (3)  The  court  erred  in  the  admission  of  evidence. 
*     *     * 

It  is  insisted  that,  when  a  citizen  of  the  state  of  Ohio  dies,  the  title 
to  his  personal  property  descends  to  his  executor  or  administrator, 
and  not  to  his  heirs,  and  therefore  the  ownership  of  the  note  and 
mortgage  involved  in  this  action  did  not  pass  to  M.  J.  Buchanan,  or 
to  the  plaintiff,  but  they  have  at  all  times  belonged  to  the  estate  of 
John  Buchanan,  deceased.  Assuming,  as  we  must  in  the  absence  of 
evidence  to  the  contrary,  that  the  law  of  the  state  of  Ohio  upon  this 
subject  is  the  same  as  it  is  in  this  state,  we  do  not  concur  in  this  view. 

Under  sections  1-32  of  the  law  relating  to  descents  and  distributions, 
being  chapter  33,  Gen.  St.  1901,  the  equitable  title  to  the  whole  es- 
tate belonging  to  a  decedent,  real  and  personal,  not  exempt,  descends 
directly  to  his  heirs.  The  legal  title  to  personal  property  passes  to  the 
administrator,  if  there  be  one,  who  holds  it  in  trust  for  creditors, 
heirs,  or  legatees.  Fletcher  v.  Wormington,  24  Kan.  264.  When 
there  are  no  debts,  administration  is  unnecessary,  and  the  heirs  may 
collect  the  estate  and  make  distribution  among  themselves.  See  3 
Redfield  on  Wills,  p.  89;  17  Am.  &  Eng.  Ency.  of  Law  (2d  Ed.)  742, 
where  it  is  said :  "If  there  are  no  creditors,  the  next  of  kin  entitled  to 
the  estate  may  collect  and  make  distribution  among  themselves  without 
administration,  but  the  court  of  probate  still  has  jurisdiction  to  grant 
adminstration,  though  the  estate  owes  no  debts,  and  there  is  only  one 
distributee."  See,  also,  18  Cyc.  62,  where  it  is  said :  "In  a  number 
of  states  it  is  held  that  administration  is  unnecessary  where  there  are 
no  debts  of  the  estate  or  the  debts  have  all  been  paid ;  the  courts  con- 
sidering that  when  the  only  duty  devolving  on  an  administrator 
would  be  to  make  a  distribution  of  the  estate,  and  the  heirs  or  dis- 
tributees make  or  are  able  to  make  a  satisfactory  distribution  or  dis- 
position thereof  themselves,  or  there  is  only  one  heir,  administration 
would  be  merely  a  useless  ceremony  involving  unnecessary  expense, 
and  the  same  is  true  where  no  administration  has  been  applied  for,  and 
the  claims  of  creditors,  if  any  exist,  are  barred  because  they  have  not 
been  presented  to  the  probate  court  within  the  time  limited  for  that 
purpose,  or  by  the  statute  of  limitations.  But,  if  any  of  the  heirs  or 
distributees  demand  an  administration,  it  must  be  had." 

phrase,  the  property  would  be  laid  in  the  judges  of  the  Probate  Division  or 
possibly  in  the  President  of  that  Division."  Maitland's  Equity  and  the 
Forms  of  Action  at  Common  Law,  88,  89,  and  note. 

17  The  statement  of  facts  and  part  of  the  opinion  are  omitted. 


518  PROBATE    AND    ADMINISTRATION.  (Part    3 

In  the  case  of  Foote  v.  Foote,  61  Mich.  181,  28  N.  W.  90,  the  court 
said :  "The  legal  estate  only  in  personal  property  vests  in  the  admin- 
istrators. The  equitable  estate  therein  is  in  the  heirs,  or  other  persons 
entitled  to  distributive  portions  thereof.  The  estate  of  the  administra- 
tors therein  is  a  trust  for  that  purpose,  and  is  created  only  for  the 
purpose  of  laying  hold  of  the  estate  and  making  such  distribution. 
When  there  are  no  creditors,  the  heirs  or  legatees  may  collect,  if  they 
can,  the  estate  together,  and  make  such  distribution  among  themselves 
as  they  may  agree  to  and  carry  into  effect,  without  the  intervention  of 
any  administrators ;  and  the  law  favors  such  arrangements.  In  such 
cases  it  is  only  where  the  heirs  or  legatees  fail  to  make  such  collec- 
tion and  distribution  that  administration  becomes  necessary.  When 
such  arrangement  and  distribution  have  been  made  and  executed,  it 
will  be  binding,  both  in  law  and  equity,  as  between  the  parties  mak- 
ing it,  whenever  the  rights  of  creditors  do  not  intervene.  And,  where 
there  are  no  creditors,  the  heirs  or  legatees  may  divide  up  and  dis- 
tribute the  personal  property  of  the  decedent,  without  converting  it 
into  money,  in  such  manner  as  they  see  fit;  and,  when  such  division 
has  been  executed,  even  though  it  is  not  such  as  the  decedent  has  made 
by  his  will,  or  such  as  the  law  would  make  when  there  is  no  will,  it 
will  be  binding  upon  all  the  parties  to  the  agreement." 

In  the  case  of  Walworth  v.  Abel,  52  Pa.  372,  it  is  said :  "No  doubt 
the  personal  estate  of  a  decedent  vests  in  the  administrator;  but  in 
trust  for  creditors  and  heirs  or  legatees.  The  mere  legal  estate  passes 
to  the  administrator.  The  equitable  descends  upon  the  parties  en- 
titled to  distribution.  If  there  be  no  creditors,  the  heirs  have  a  com- 
plete equity  in  the  property,  and,  if  they  choose,  instead  of  taking 
letters  of  administration,  to  distribute  it  by  arrangement  made  and  ex- 
ecuted amongst  themselves,  where  is  the  principle  which  forbids  it? 
The  parties  to  such  an  arrangement  executed  would  be  forever  equita- 
bly estopped  from  disturbing  it,  as  amongst  themselves,  upon  the  most 
familiar  principles  of  justice.  And  why  shall  the  arrangement  be 
broken  up  by  a  mere  intermeddler?  Family  arrangements  are  favor- 
ites of  the  law,  and  when  fairly  made  are  never  allowed  to  be  dis- 
turbed by  the  parties,  or  any  other  for  them." 

The  following  cases  are  to  the  same  effect:  Needham's  Adm'r  v. 
Gillett's  Adm'r,  39  Mich.  574;  Waterhouse  v.  Churchill.  30  Colo. 
415,  70  Pac.  678;  McGhee  v.  Alexander,  104  Ala.  116,  16  South.  148; 
Cox  v.  Yeazel,  49  Neb.  343,  68  N.  W.  485. 

In  this  case  there  were  no  debts,  except  a  few  of  small  amount, 
which  were  paid.  The  assets  were  accessible  to  the  heirs  of  the  in- 
testate, who  lived  where  they  could  easily  confer  with  each  other. 
The  appointment  of  an  administrator  was  unnecessary,  and  the  ex- 
penses incident  thereto  might  well  be  avoided.  The  property  be- 
longed to  the  heirs  exclusively,  and  it  seems  reasonable  and  just  that 
they  should  have  the  right  to  divide  it  among  themselves,  and  own, 
use,  and  dispose  of  it  in  severalty  as  any  other  property  which  they 


Ch.    1)  GRANT    AND    REVOCATION.  519 

might  own.  The  only  person  who  could  question  such  a  transaction 
would  be  a  creditor  who  had  been  overlooked  and  not  paid.  The  pos- 
sibility of  that  contingency  had  passed,  however,  some  years  before 
this  action  was  commenced  by  lapse  of  time;  more  than  three  years 
having  passed  since  the  last  date  at  which  an  administrator  might  have 
been  appointed.  Bauserman  v.  Charlott,  46  Kan.  480,  26  Pac.  1051 ; 
Kulp  V.  Kulp,  51  Kan.  341,  33  Pac.  1118,  21  L.  R.  A.  550 ;  Bank  v. 
King,  60  Kan.  737,  57  Pac.  952. 

The  widow  and  each  of  the  children  of  John  Buchanan,  deceased, 
testified  at  the  trial  to  the  settlement  and  division  of  the  estate  among 
themselves  and  the  grandchildren  of  the  deceased,  and  that  it  was 
satisfactory  to  all  parties.  The  great  lapse  of  time  since  the  estate 
was  settled,  during  which  all  parties  have  acquiesced  therein  and  re- 
tained the  amount  received  thereby  is  sufficient  to  estop  them  from 
hereafter  objecting  to  the  arrangement.  The  claim  of  the  plaintiff  in 
error  that  the  note  and  mortgage  are  barred  by  the  statute  of  limita- 
tions is  placed  upon  the  ground  that  Mary  J.  Buchanan  did  not  be- 
come the  owner  thereof  by  the  action  of  the  heirs  of  John  Buchanan, 
deceased,  and  therefore  the  payment  of  interest  to  her  did  not  prevent 
the  running  of  the  statute.  The  view  we  have  taken  of  her  rights  in 
this  respect,  however,  answers  this  objection,  and  the  question  need 
not  be  further  considered. 

This  disposes  of  the  assignments  of  error.  No  material  error  hav- 
ing been  shown,  the  judgment  is  affirmed.^* 

18  See  Carter  v.  Owens,  41  Ala.  217  (1SG7),  where  the  deceased  left  a  will. 
See,  also,  Granger  v.  Harriman,  89  Minn.  303,  94  N.  W.  869  (1903).  But  see 
Davenport  v.  Brooks,  92  Ala.  627,  9  South.  153  (1890).  In  22  L.  R.  A.  (X.  S.) 
454,  note,  the  cases  pro  and  contra  on  the  right  of  the  next  of  kin  to  main- 
tain an  action  in  the  interest  of  the  estate  under  the  circumstances  shown 
in  Brown  v.  Baxter,  supra,  are  collected. 

"There  is  a  series  of  decisions  in  this  court  asserting  that,  when  an  estate 
is  left  entirely  free  from  debt,  the  distributees  may  in  equity  obtain  distribu- 
tion without  the  delay  and  expense  of  administration.  *  *  *  "p^jg  ^.^jjg  ^^ 
be  extracted  from  these  decisions  Is  that  a  court  of  equity  will  dispense  with 
an  administration,  and  decree  distribution  directly,  when  it  affirmatively  ap- 
pears that,  if  there  was  an  administrator,  the  only  duty  devolving  on  him 
would  be  distribution.  Then  administration  is  regarded  as  'a  useless  cere- 
mony.' "  Brickell,  G.  J.,  in  Fretwell  v.  McLenore,  52  Ala.  124,  131,  133 
(1875).  See  Wood  v.  Ford,  29  Miss.  57  (1855).  So,  where  there  is  collusion 
between  the  administrator  and  the  person  sued,  making  such  action  neces- 
sary, the  next  of  kin  may  be  allowed  to  sue,  joining  the  administrator  as  a 
defendant.  Doran  v.  Simpson.  4  Ves.  Jr.  651  (1'99)  ;  Trotter  v.  Mutual  Reserve 
Fund  Life  Ass'n,  9  S.  D.  596,  70  N.  W.  843,  62  Am.  St.  Rep.  887  (1897); 
Anderson  v.  Goodwin.  125  Ga.  663.  54  S.  E.  679.  114  Am.  St.  Rep.  185  (1906). 

On  the  necessity  of  administration  and  the  effect  of  agreements  dispensing 
therewith,  see  15  L.  R.  A.  490,  note;  112  Am.  St.  Rep.  729,  note.  In  Orms- 
bee  V.  Piper,  123  Mich.  265,  82  N.  W.  36  (1900),  It  was  held  that  an  adminis- 
trator, duly  appointed  without  appeal,  could  not  be  denied  the  uncollected 
choses  in  action  belonging  to  the  estate  just  because,  there  being  no  debts, 
the  next  of  kin  had  agreed  that  there  should  be  no  administration  of  the 
estate. 

"Ordinarily  the  entire  title  to  personal  property  left  by  an  intestate  vests 
in  the  administrator  of  his  estate.  *  *  *  What  is  the  condition  under 
which  an  exception  to  this  general  rule  should  be  permitted?     Obviously  it 


520  PROBATE    AND    ADMINISTRATION.  (Part  3 

< 

DUDLEY  V.  GATES. 

(Supreme  Court  of  Michigan,  1901.     124  Mich.  446,  86  N.  W.  959.) 

Montgomery,  C.  J.^"  This  case  was  decided  at  the  June  term, 
1900,  and  is  reported  in  124  Mich.  440,  83  N.  W.  97.  A  rehearing  has 
been  granted,  and  we  have  been  favored  with  full  briefs  and  able  ar- 
guments by  counsel. 

It  is  strenuously  insisted  that  the  court  was  in  error  in  determining 
that  on  the  probate  of  a  will  it  is  not  the  duty  of  the  court  to  construe 
the  terms  of  the  will.  Upon  full  consideration,  we  are  thoroughly  con- 
vinced that  the  former  opinion  correctly  states  the  general  rule.  In 
Woerner,  Adm'n,  §  222,  p.  *485,  it  is  said :  "A  court  of  probate  deter- 
mines only  whether  the  instrument  propounded  has  been  executed  by 
the  testator  and  attested  by  the  witnesses  in  the  manner  prescribed  by 
the  statute,  and  that  he  possesses  a  sufficient  testamentary  capacity ;  in 
other  words,  whether  the  instrument  is  the  testator's  spontaneous  act, 
expressing  his  last  will  in  the  form  recognized  by  law.  Its  approval 
of  the  will  relates  only  to  the  form.  Void  bequests  are  not  validated 
thereby,  nor  should  the  probate  distinguish  between  valid  and  void, 

should  embrace  these  three  elemental  facts:  First,  the  absence  of  debts 
against  the  estate;  second,  the  legal  age  of  each  of  the  heirs  entitled  to 
share  in  its  distribution ;  and,  third,  a  unanimity  among  them  as  expressed 
by  their  agreement  or  acts  to  dispense  with  an  administration.  In  the  absence 
of  these  three  elements,  it  cannot  be  said  the  title  vested  in  the  administra- 
tor is  a^mere  naked  trust.  If  creditors  exist,  they  have  the  right  to  an  ad- 
ministration of  the  estate  in  the  manner  provided  by  law.  If  any  of  the 
heirs  is  of  nonage,  he  cannot  consent  to  a  'domestic  distribution,'  and  his 
right  to  the  protection  of  an  administration  cannot  be  contracted  away  by 
the  others  in  interest.  And,  lastly,  it  may  be  stated  as  a  self-evident  proposi- 
tion that  no  heir  against  his  will  can  be  deprived  of  the  benefit  of  adminis- 
tration. He  may  fear  the  possibility  that  in  course  of  time  some  one  may 
come  forward  with  a  fictitious  demand  against  the  estate,  relying  for  suc- 
cess on  the  fact  that  the  evidence  by  which  it  could  have  been  refuted  has 
I)erished,  or  he  may  prefer  not  to  attempt  to  make  an  agreement  with  the 
other  heirs  for  a  division  of  the  estate,  but  to  let  the  law  take  its  course. 
He  cannot  be  coerced  into  an  agreement,  nor  be  deprived  of  the  protection  of 
an  administration,  except  by  consent."  Johnson,  J.,  in  Griesel  v.  Jones,  123 
Mo.  App.  45,  99  S.   W.  769  (1907). 

In  Koslowski  v.  Neuman,  74  Neb.  704,  105  N.  W.  295,  3  L.  R.  A.  (N.  S.)  704 
(1905),  an  agreement  by  an  intestate  to  let  all  his  property  at  his  death  "de- 
scend to  and  belong  to"  one  K.,  who  was  not  an  heir  or  one  of  the  next  of 
kin,  was  held  to  entitle  K.,  as  equitable  owner,  to  retain  the  property  agninst 
the  administrator  in  the  absence  of  a  showing  that  the  deceased  left  creditors. 
See  3  L.  R.  A.  (N.  S.)  701,  note. 

Under  the  Washington  statute,  the  testator  may  empower  his  executors 
•to  administer  his  estate  without  the  intervonlion  of  the  probate  court.  Moore 
V.  Kirkman,  19  Wash.  605,  54  Pac.  24  (1S98) ;  Strand  v.  Stewart,  51  Wash. 
685,  99  Pac.  1027  (1900).  Rut  the  will  must  be  admitted  to  probate.  SIiu- 
feldt  V.  ITnghes  (W'ash.)  104  Pac.  25.''>  (1009).  In  some  states  a  residuary 
legatee,  by  giving  a  bond  to  pay  all  delits  and  legacies,  is  enabled  to  dispense 
with  certain  probate  proceedings  and  acquires  certain  peculiar  rights  and 
llnbilities.  See  Thompson  v.  Pope.  77  Neb.  338,  109  N.  W.  498  (1906)  and 
cases  cited;  In  re  Pope's  Estate,  Caulton  v.  Pope,  83  Neb.  723,  120  N.  W. 
191  (1909). 

i»  Part  only  of  the  opinion  on  rehearing  is  given. 


Ch.    1)  GRANT    AND    REVOCATION.  521 

eertain  and  uncertain,  rational  or  impossible  dispositions  of  the  tes- 
tator. All  such  questions  are  for  the  courts  of  construction,  which  are 
bound  by  the  judgments  of  the  courts  of  probate  only  as  to  the  due 
execution."  In  addition  to  the  cases  cited  in  our  former  opinion,  this 
holding  is  supported  by  Cox  v.  Cox,  101  Mo.  168,  13  S.  W.  1055,  and 
the  cases  cited  at  page  *502  of  Woerner,  note  4.  See,  also,  Hawes 
V.  Humphrey,  9  Pick.   (Mass.)  350,  20  Am.  Dec.  481. 

It  is  true  as  stated  in  our  former  opinion,  that  the  probate  court, 
upon  the  distribution  of  the  estate,  may  construe  the  will  for  certain 
purposes.  *  But,  as  was  said  by  Campbell,  C.  J.,  in  Frazer  v.  Circuit 
Judge,  39  Mich.  198,  the  question  to  be  determined  upon  the  probate 
of  a  will  is  the  question  of  will  or  no  will.  But  it  is  contended  that 
there  may  be  cases  in  which,  as  bearing  upon  the  other  issues  in  the 
case,  it  is  necessary,  in  the  probate  of  a  will,  for  the  court,  in  some 
measure,  to  construe  the  will.  This  was  not  denied  in  the  former 
opinion,  nor  was  it  denied  the  contestants  in  this  case  by  the  trial 
judge.  The  court,  in  efifect,  charged  the  jury  that  the  provision  re- 
lating to  the  establishment  of  a  home  for  aged  men  and  women  was, 
in  part  at  least,  void  in  law,  but  declined  to  charge  that  this  would 
invalidate  the  whole  will,  and  in  this,  we  think,  he  committed  no  error. 
If,  as  a  matter  of  fact,  the  estate  left  was  insufficient  to  establish  a 
home  for  aged  men  and  women,  the  proponent  would  take  under  the 
will,  irrespective  of  the  question  of  the  validity  of  the  trust.  We  can 
add  little  to  what  was  said  in  our  former  opinion  upon  this  sub- 
ject.    *     *     * 

The  other  questions  discussed  on  the  rehearing  have  had  full  con- 
sideration, but  we  are  not  disposed  to  depart  from  our  former  hold- 
ing, and  the  judgment  will  stand  affirmed. 


SECTION  3.— THE  APPOINTMENT  AND  REMOVAL  OF  EX- 
ECUTORS AND  ADMINISTRATORS  ''^ 


JOHNSON  v.  JOHNSON. 

(Supreme  CJourt  of  Rhode  Island,  1885.     15  R.  I.  109,  23  Atl.  106.) 

Matteson,  J.  This  is  an  appeal  from  a  decree  of  the  court  of  pro- 
bate of  Cranston,  appointing  an  administrator  of  the  estate  of  Anna 
Johnson,  deceased.     The  intestate  died  in  Cranston  on  the  17th  day 

2  0  An  "executor"  is  a  person  named  in  the  will,  and  in  consequence  ap- 
pointed by  the  court,  to  administer  the  estate  of  the  testator.  An  '^adminis- 
trator" is  a  person,  not  named  by  a  testator,  appointed  to  administer  the  es- 
tate of  a  deceased  An  "administrator  with  the  will  annexed"  (cum  testa- 
mento  annexe)  is  an  administrator  appointed  to  administer  the  estate  of  a 
testator  wbere  for  some  reason  there  is  no  executor.     An  "administrator  de 


522  PROBATE    AND    ADMINISTRATION.  (Part    3 

of  January,  1885.  At  and  for  several  years  prior  to  her  death  she 
had  resided  in  Cranston,  and  in  the  family  of  Charles  E.  Johnson,  the 
appellee,  whose  wife,  also  deceased,  was  her  illegitimate  daughter.  The 
appellant,  Walter  H.  Johnson,  and  his  sister,  Mary  E.  Seward,  wife  of 
Charles  R.  Seward,  of  Chicago,  111.,  are  children  of  the  said  Charles 
E.  Johnson  by  his  said  wife,  and  grandchildren  of  the  intestate.  Both 
Charles  E.  Johnson  and  his  son,  the  said  Walter  H.  Johnson,  made 
application  to  the  court  of  probate  to  be  appointed  administrator. 
Mrs.  Seward  objected  to  the  appointment  of  her  brother,  and  re- 
quested the  appointment  of  her  father.  The  court  appointed  the  fa- 
ther, and  the  son  appealed. 

The  son  claimed  the  appointment  as  next  of  kin  of  the  intestate,  un- 
der Pub.  St.  c.  184,  §  4,  which  is  as  follows :  "Administration  of  the 
estate,  both  real  and  personal,  of  a  person  dying  intestate,  shall  be 
granted  to  the  widow  or  next  of  kin  of  the  intestate,  being  suitable 
persons,  and  of  the  age  of  twenty-one  years,  or  to  both,  as  the  court 
of  probate  shall  think  fit."  On  the  part  of  the  father  it  was  argued 
that  Pub.  St.  c.  184,  §  4,  had  no  application,  the  son  not  being,  in  con- 
templation of  law,  next  of  kin  of  the  intestate,  because  his  mother,  be- 
ing the  illegitimate  daughter  of  the  intestate,  was  not,  at  common  law, 
of  the  kindred  of  the  mother,  though  the  same  blood  ran  in  their  veins ; 
and  that,  while  Pub.  St.  c.  187,  §  7,  in  these  words:  "Bastards  shall 
be  capable  of  inheriting  and  transmitting  inheritance  on  the  part  of 
their  mother,  in  like  manner  as  if  they  had  been  lawfully  begotten  of 
such  mother" — has  so  far  changed  the  common  law  as  to  enable  il- 
legitimate children  to  take  and  transmit  inheritances  collaterally  on  the 
part  of  their  mother,  the  statutes  have  nowhere  made  such  illegitimate 
children  kindred  of  their  mother,  and  consequently,  as  the  mother  of 
the  appellant  was  not  kindred  of  the  intestate,  her  son  is  not. 

If  we  concede  the  force  of  this  argument,  and  grant  that  the  appel- 

bonis  non"  is  an  administrator  appointed  to  carry  on  tbe  administration  of 
nn  estnte  where  for  any  reason  a  partial  administration  only  has  been  had. 
An  "administrator  de  bonis  non  cum  testamento  annexe"  Is  an  administrator 
appointed  to  carry  on  the  administi-ation  of  an  estate  where  a  partial  admin- 
istration has  taken  place  under  a  .probated  will.  A  "public  administrator" 
is  an  officer  designated  by  statute  to  administer  the  estates  of  persons  dying 
intestate  without  relatives  entitled  or  willing  to  administer.  In  In  re  Es- 
ate  of  McWhirter,  235  111.  007,  85  N.  E.  918  (1908),  a  public  administrator 
was  held  entitled  to  administer  as  against  the  nominee  of  the  nonresident 
distributees.  The  statutes  vary  somewhat.  An  "administrator  pendente  lite" 
is  one  appointed  to  preserve  the  estate  pending  a  contest  over  the  appoint- 
n.ient  of  a  permanent  executor  or  administrator.  A  "special  administrator"  is 
(1)  an  administrator  pendente  lite,  and  (2)  an  administrator  for  any  other 
temporary  and  limited  purpose.  See  Clemens  v.  Walker,  40  Ala.  189,  198 
(ISOG).  On  administrators  pendente  lite,  see  6  Am.  &  Eng.  Ann.  Cas.  203,  note. 
At  common  law  an  executor  of  an  executor  was  ipso  facto  the  executor 
of  the  first  testator.  That  rule  seems  still  to  exist  in  a  few  states.  See  Jep- 
son  V.  .Martin,  IIG  Ga.  772,  43  S.  E.  75  (1902).  But  in  most  states  the  rule 
is  obsolete.  In  the  Estate  of  Alexander  Harper,  [1909]  P.  88,  the  executors 
of  a  sole  executor  and  universal  legatee  were  allowed  to  hold  the  assets  of  the 
original  estatfe  on  bond  without  sureties,  no  answer  having  been  received  to 
advei'tisements  for  creditors. 


Ch.    1)  GRANT   AND    REVOCATION. 


523 


lant  is  not,  in  legal  contemplation,  next  of  kin  to  the  intestate,  we  nev- 
ertheless think  that  he  is  entitled  to  the  appointment.  If  he  is  not  to 
be  regarded  as  such  next  of  kin,  then  no  application  by  such  next  of. 
kin  for  letters  of  administration  has  been  made  within  30  days  from 
the  death  of  the  intestate,  and  under  Pub.  St.  c.  184,  §  5,  it  is  compe- 
tent for  the  court  to  commit  administration  to  some  suitable  person  of 
full  age,  not  a  member  of  the  court.  For  aught  that  appeared  at  the 
hearing,  the  appellant  answers  these  requirements  of  the  statute.  In 
granting  administration  the  primary  object  is  the  interest  of  the  estate; 
hence  courts  have  deemed  it  their  duty  to  place  the  administration  in 
the  hands  of  the  person  most  likely  to  convert  the  property  to  the  best 
advantage  of  those  beneficially  interested.  Other  things  being  equal, 
that  person  will  be  he  who  is  entitled  as  distributee,  in  whole  or  in 
part,  to  the  residue  of  the  estate  after  the  claims  of  creditors  have  been 
satisfied,  because  of  his  interest.  It  is  therefore  an  established  prin- 
ciple governing  courts  exercising  probate  jurisdiction  that  the  right  to 
the  administration  of  the  effects  of  an  intestate  follows  the  property 
in  them.  In  re  Goods  of  Gill,  1  Haag.  Ecc.  341,  342;  Wetdrill  v. 
Wright,  2  Phillim.  Ecc.  243,  248;  Ellmaker's  Estate,  4  Watts  (Pa.) 
34,  38;  Sweezey  v.  Willis,  1  Bradf.  Sur.  (N.  Y.)  495-497;  Hall  v. 
Thayer,  105  Mass.  219,  224,  7  Am.  Rep.  513 ;  Thornton  v.  Winston, 
4  Leigh  (Va.)  153,  160,  162;  Clay  v.  Jackson,  T.  U.  P.  Charlt.  71, 
73;  Leverett  v.  Dismukes,  10  Ga.  98,  99. 

In  1  Will.  Ex'rs  436,  the  author  remarks  that  both  in  the  common- 
law  and  spiritual  courts  it  has  always  been  considered  that  the  object 
of  the  statutes  of  administration,  31  Edw.  Ill,  c.  11,  and  21  Hen.  VIII, 
c.  5,  is  to  give  the  management  of  the  property  to  the  person  who  has 
the  beneficial  interest  in  it;  and  the  inclination  to  effectuate  this  object 
has  been  so  strong  that  in  some  instances  not  only  the  practice  of  the 
ecclesiastical  court,  but  the  decisions  of  the  judges  delegate,  have  not 
scrupled  to  disregard  the  express  words  of  the  statute ;  and  he  cites  the 
cases  of  Bridges  v.  Duke  of  Newcastle,  cited  by  the  court  in  West  v. 
Willby,  3  Phillim.  Ecc.  381,  and  Young  v.  Peirce,  Freem.  496.  In  the 
former.  Lord  HoHis  had  died  intestate,  and  Bridges  claimed  administra- 
tion as  next  of  kin.  The  effects  were  vested  by  act  of  parliament  in 
the  duke  of  Newcastle,  to  pay  the  debts  of  the  deceased.  The  judge 
of  the  prerogative  court,  and  afterwards  the  delegates,  held  that  the 
next  of  kin  was  excluded  on  the  ground  that  he  had  no  interest,  and 
granted  administration  to  the  duke  of  Newcastle.  In  the  latter,  ad- 
ministration was  refused  by  the  prerogative  and  the  delegates  to  a 
next  of  kin  on  the  ground  that  she  had  released  her  interest,  and  the 
letters  were  granted  to  the  party  beneficially  entitled  to  the  personal 
estate.  And  see,  also,  Thornton  v.  Winston,  4  Leigh  (Va.)  153,  163; 
Leverett  v.  Dismukes,  10  Ga.  98,  99. 

Under  our  statutes  of  descent  and  distribution  (Pub.  St.  c.  187,  §§ 
1,  5,  7,  9),  the  appellant  and  his  sister  are  the  persons  entitled  to  the  sur- 
plus of  the  personal  estate  of  the  intestate  after  payment  of  her  just 


524  PROBATE    AND    ADMINISTRATION.  (Part    3 

debts,  funeral  charges,  and  the  expenses  of  settling  her  estate.  It  fol- 
lows, therefore,  that  they  are  the  persons  who  would,  if  competent, 
be  entitled  to  the  administration.  Mrs.  Seward,  however,  is  not  an 
applicant,  and,  if  she  were,  her  coverture  and  nonresidence  would  prob- 
ably be  regarded  as  sufficient  disqualifications  to  prevent  her  appoint- 
ment. If  there  was  any  good  reason  against  appointing  her  brother, 
her  wishes  in  regard  to  the  appointment  would  be  entitled  to  consid- 
eration; but,  in  the  absence  of  such  reason,  we  cannot  permit  them 
to  operate  to  his  exclusion,  he  being  equally  entitled  with  herself,  and 
both  competent  and  desirous  to  act.  McBeth  v.  Hunt,  2  Strob.  (S.  C) 
335;  Heron's  Estate,  6  Phila.  (Pa.)  87,  88;  In  re  Cresse,  28  N.  J. 
Eq.  236,  237;   Cobb  v.  Newcomb,  19  Pick.  (Mass.)  336. 

The  decree  of  the  court  below  must  be  reversed,  and  letters  of  ad- 
ministration granted  to  the  appellant.    Order  accordingly.* 


JUDGE  OF  PROBATE  v.  CHAMBERLAIN. 

(Superior  C!ourt  of  Judicature  of  New  Hampshire,  1824.    3  N.  H.  129.) 

This  was  an  action  of  debt  upon  a  probate  bond,  given  by  the  de- 
fendant upon  his  taking  upon  himself  the  burthen  of  executing  the 
will  of  Moses  Chamberlain,  deceased.  The  defendant  was  defaulted, 
and  upon  a  hearing  of  the  parties  as  to  the  sum  for  which  execution- 
ought  to  be  awarded,  it  appeared,  that  the  said  Moses,  the  testator,  by 
his  will,  gave  to  his  daughter  Rhoda  $100,  to  be  paid  to  her  in  one 
year  after  the  decease  of  her  mother.  Rhoda  having  married  Lemuel 
Wheelock,  died  without  issue,  after  the  decease  of  her  father,  but 
before  the  decease  of  her  mother,  leaving  several  brothers  and  sisters. 
The  mother  of  Rhoda  died  in  the  year  1819.  The  question  was,  wheth- 
er the  husband  of  Rhoda  was  entitled  to  the  said  legacy? 

Richardson,  C.  J.  At  the  common  law,  administration  of  the  es- 
tate of  a  person  dying  intestate,  belonged  of  right  to  no  particular  per- 
son, but  it  was  in  the  discretion  of  the  ordinary  to  grant  administration 
to  whom  he  saw  fit.  But  the  statute  of  21  Hen.  VHI  gave  the  ad- 
ministration to  the  next  of  kin ;  and  when  there  happened  to  be  more 
than  one  of  equal  akin,  he,  who  first  took  administration,  was  entitled 
to  the  surplus  of  the  personal  estate,  after  paying  the  debts.  The 
law  thus  remained,  until,  by  the  statute  of  22  &  23  Car.  II,  c.  10,  ad- 
ministrators were  made  liable  to  make  a  distribution.  But  that  statute 
made  no  express  mention  of  a  husband's  administering  to  his  wife; 
and  as  no  person  could  be  in  equal  degree  to  the  wife  with  the  hus- 
band, he  was  held  not  to  be  within  the  act.  And  the  statute  of  29 
Car.  II,  c.  3,  §  25,  expressly  declared,  that  the  husband  might  demand 

*  That  an  adopted  child  had  no  right  as  such  child  to  administer  the  estate 
of  the  adopting  parent  was  held  in  In  re  Smith's  Estate,  225  Pa.  630,  74 
AtL  622  (1909). 


Ch.    1)  GRANT    AND    REVOCATION.  525 

administration  of  his  deceased  wife's  personal  estate,  and  recover  and 
enjoy  the  same,  as  he  might  have  done  before  the  statute  of  the  22  & 
23  Car.  II,  c.  10. 

Since  that  time,  it  seems  never  to  have  been  doubted,  that  a  hus- 
band may  administer  upon  his  deceased  wife's  estate,  and  that  he  is 
entitled,  for  his  own  benefit,  to  all  her  chattels  real,  things  in  action, 
trusts,  and  every  other  species  of  personal  property,  whether  actually 
vested  in  her  and  reduced  to  possession,  or  contingent,  or  recoverable 
only  by  action.  And  in  case  the  husband  dies  before  he  administers, 
the  right  to  administer,  and  to  the  property,  goes  to  the  heirs  of  the 
husband.     [Citation  of  authorities.] 

We  are  therefore  of  the  opinion  that  the  husband  of  Rhoda  is  en- 
titled to  the  legacy  given  her  by  her  father.^ ^ 


COX  v.  MORROW. 
(Supreme  Court  of  Arkansas,  1854.    14  Ark.  603.) 

Watkins,  C.  J."  *  *  *  In  1808  Asa  Grant  died  in  North  Caro- 
lina, leaving  a  will,  one  clause  of  which  is  in  these  words :  "I  further 
give  unto  my  beloved  wife  (Jemmima)  one  negro  woman,  known  by 
the  name  of  Harriet,  and  her  issue,  during  her  natural  life,  and  after 
her  death  the  said  negro  woman  Harriet  and  her  issue,  I  give  and  be- 
queath unto  my  beloved  daughters,  Clarissa  Grant  and  Polly  Grant,  to 
be  equally  divided  amongst  them."  Jemmima  Grant,  the  widow,  mar- 
ried Arthur  Morrow,  and  they  moved  to  Tennessee,  and  from  thence 
to  Arkansas,  where  she  died  in  the  year  1848.  Clarissa  Grant  married 
Eli  Cox,  in  Tennessee,  where  they  continue  to  live.  Polly  Grant  mar- 
ried Hiram  Williams  and  they  moved  to  Texas,  where  she  died  in 
the  year  1845,  leaving  several  children,  the  issue  of  their  marriage,  who 
are  still  living.  In  1849  Williams  sold  and  conveyed  all  his  right,  title 
and  interest  in  the  slaves  in  controversy  to  Pack  and  Gates,  two  of  the 
appellants.  From  the  time  of  his  marriage  with  Jemmima  Grant, 
Morrow  always  had  possession  of  Harriet  and  her  issue,  in  right  of 
his  wife,  and  after  her  death,  in  1848,  he  continued  to  keep  them  in 
possession,  never  until  then  claiming  them  as  his  own.  The  negroes 
now  in  controversy  are  Delia,  who  is  the  daughter  of  Harriet,  and 
George,  the  child  of  Delia. 

Upon  the  refusal  of  Morrow  to  surrender  them,  when  demanded  by 
the  appellants,  they  sued  him  by  action  of  replevin  in  the  detinet.  The 
defendant  pleaded  non  detinet,  and  a  special  plea  asserting  property  in 
himself,  with  a  traverse  of  property  in  the  plaintiffs.  The  court  sitting 
as  a  jury  found  upon  the  evidence,  for  the  defendant,  and  he  had  judg- 
ment accordingly.    *     *     * 

21  Compare  In  re  Degnan  (N.  J.  Prerog.)  71  Atl.  668  (1908). 
2  2  Part  only  of  the  opinion  is  given. 


526  PROBATE    AND    ADMINISTRATION.  (Part  3 

3.  One  of  the  questions  mainly  argued  is  whether  Williams  suc- 
ceeded as  distributee  to  the  choses  in  action  of  his  deceased  wife,  or 
her  chattels  not  reduced  into  possession  during  the  coverture;  and, 
supposing  that  he  would  be  entitled  to  them,  whether  he  or  any  as- 
signee of  his  could  bring  an  action  for  their  recovery,  without  taking 
out  administration  upon  his  wife's  estate  and  suing  in  a  representative 
capacity.  It  will  be  conceded  that,  at  the  common  law,  the  custom 
grew  up  for  the  husband  to  be  entitled  to  receive  from  the  ordinary 
the  delegated  power  of  administering  upon  the  wife's  estate,  and,  be- 
coming possessed  of  the  goods  as  administrator,  he  was  allowed  to  re- 
tain any  surplus  after  the  payment  of  the  debts,  without  being  required 
to  make  distribution  to  her  next  of  kin.  But  neither  the  statute  of  22 
Car.  II,  requiring  administrators  to  make  distribution,  nor  that  of 
29  Car.  II,  exempting  the  husband,  administering  in  right  of  his  being 
such,  from  the  duty  of  making  distribution,  and  thus  recognizing  his 
legal  right  to  retain  the  surplus,  ever  had  any  force  or  operation  in  this 
state.  And  for  the  source  of  the  husband's  right  to  administer,  it  would 
hardly  be  necessary  to  go  back  to  the  common  law,  superseded  here 
by  a  statutory  system  of  administration. 

According  to  the  territorial  law  (Steele  &  McCamp,  Dig.  title  "Ad- 
ministration," §  4)  the  husband  or  wife  had  the  preference,  before 
the  next  of  kin,  in  administering  upon  the  estate  of  the  other;  and 
that  law  (Id.  title  "Descents  and  Distributions")  undertook  to  define 
accurately  what  interest  the  husband,  surviving  his  wife,  should  take 
in  her  real  estate  and  slaves  and  personal  estate  in  possession  or  in 
action,  varied  by  the  contingencies  of  her  dying  with  or  without  issue. 
The  Revised  Statutes,  succeeding  the  territorial  law,  re-enacted  so 
much  of  it  (title  "Administration,"  §  6)  as  required  letters  to  be 
"granted  to  the  representatives  of  the  intestate  who  may  apply  for  the 
same  and  are  qualified,  preferring  first,  the  husband,  or  wife,  or  one 
of  the  persons  entitled  by  law  to  a  distribution  of  the  intestate's  es- 
tate," and  though  the  language  there  used  would  seem  as  if  intended 
to  apply  to  a  state  of  case,  where  by  law  the  husband  or  wife  sur- 
viving would  succeed,  as  distributee,  to  the  whole,  or  some  part  of 
the  estate  of  the  other,  yet  the  statute  of  descents  and  distributions, 
as  remodeled  by  the  revisors,  negatives  any  such  apparent  inten- 
tion.    *     *     * 

Though  an  examination  at  large  of  this  subject,  and  especially  as 
connected  with  a  more  recent  enactment  of  December  8,  1846,  enabling 
married  women  to  become  seised  or  possessed  of  property,  real  or  per- 
sonal, in  their  own  right,  while  the  former  law,  denying  to  them  the 
general  power  of  testamentary  disposition,  is  retained  in  force,  would 
disclose  much  of  lamentable  uncertainty  and  inconsistency,  we  have  no 
discretion  to  construe  away  what  appears  to  be  the  necessary  result 
of  the  statute,  whether  so  intended  or  not  (1  Swift,  Digest,  28 ;  Reeves, 
Dom.  Rel.  16;  Bunch's  Adm'r  v.  Hurst's  Adm'r,  3  Desaus.  289,  5 
Am.  Dec.  551;   Gough  v.  Crane,  3  Md.  Ch.  127),  and  must  conclude. 


Ch.    1)  GRANT    AND    REVOCATION.  527 

that,  as  the  law  now  stands,  the  husband  surviving'  is  entitled  only  to 
the  preference  in  the  administration  of  the  estate  of  the  wife,  to  en- 
able him  to  recover  her  choses  in  action  not  disposed  of  or  converted 
by  him,  and  her  personal  property,  not  reduced  to  possession  during, 
coverture,  for  the  purpose  of  paying  her  debts  and  making  distribution 
of  the  surplus  among  her  next  of  kin,  to  all  of  whom  he  is  postponed 
in  the  succession. 

It  is  not  pretended  that  two  of  the  plaintiffs  have  sued  here  in  a 
representative  capacity ;  and  assuming  the  law  to  be  as  we  have  stated 
it,  we  need  not  inquire  further  whether  the  husband,  entitled  as  dis- 
tributee of  the  wife's  estate,  should  nevertheless  sue  as  her  admin- 
istrator, though  we  apprehend  that  in  such  case  he  would  come  under 
the  general  rule  that,  in  an  action  at  law  to  recqyer  the  personal  prop- 
erty of  an  intestate,  the  plaintiff  must  derive  title  by  or  through  an 
administrator.    *    *    *    Affirmed.^' 


SAXE  et  al.  V.  SAXE  et  al. 
(Supreme  Court  of  Wisconsin,  1903.    119  Wis.  557,  97  N.  W.  187.) 

Application  by  Leo  E.  Saxe  and  another  for  the  probate  of  the  will 
of  Louis  Saxe,  deceased.  At  the  close  of  the  trial  the  circuit  court 
found,  in  effect,  that  at  the  time  of  the  probate  of  the  will  by  the 
county  court  and  the  issuing  of  letters  testamentary  thereon  to  Leo  E. 
Saxe  he  was  legally  competent  to  act  as  such  executor ;  that  some  years 
before  Leo  E.  Saxe  gambled  at  times,  but  the  nature  of  such  gambling 
was  not  disclosed  by  the  evidence,  and  it  was  not  proved  that  he  was 
ever  an  habitual  or  professional  gambler;  that  the  evidence  tended  to 
throw  suspicion  upon  the  good  faith  of  some  of  the  business  transac- 
tions of  Leo  E.  Saxe  in  previous  years,  but  not  sufficient  to  prove  ac- 
tual fraud  and  dishonesty  on  his  part ;  that  the  evidence  failed  to  sus- 
tain the  objections  filed  to  his  appointment  as  such  executor,  except 
in  the  particular  that  he  was  obnoxious  to  the  heirs  who  filed  such  ob- 
jections. And  as  conclusions  of  law  the  court  found,  in  effect,  that 
Leo  E.  Saxe,  at  the  time  of  the  death  of  the  testator  and  the  pro- 
bate of  the  will  was,  and  still  is  at  the  present  time,  legally  competent 
to  act  as  such  executor  of  said  last  will  and  testament,  and  was  entitled 
to  the  issuance  of  letters  testamentary  to  him  as  such  executor.  *   *  * 

Cassoday,  C.  ].'"■     *     *     *     The  statute  declares  that:    "When  a 

23  "In  this  state,  administration  and  distribution  are  governed  by  statute. 
The  common-law  right  of  the  liusband  surviving  the  wife  to  exclusively  ad- 
minister upon  and  enjoy  her  personal  estate  does  not  here  exist."  Elbert,  J., 
in  Goodrich,  Adm'r,  v.  Treat,  3  Colo.  408,  411  (1877). 

Local  statutes  should  be  consulted.  See,  in  general,  1  Woerner's  American 
Law  of  Administration  (2d  Ed.)  §§  235,  236.  On  the  widow's  right  to  appoint- 
ment, see  Id.  §  237. 

24  Part  only  of  the  statement  of  facts  and  of  the  opinion  is  given. 


528  PROBATE    AND    ADMINISTRATION.  (Part  3 

will  shall  have  been  duly  proved  and  allowed  the  county  court  shall 
issue  letters  testamentary  thereon  to  the  person  named  executor  there- 
in, if  he  is  legally  competent  and  shall  accept  the  trust  and  give  bond 
as  required  by  law."  Section  3792,  Rev.  St.  1898.  Upon  the  will  be- 
ing admitted  to  probate,  and  Leo  E.  Saxe,  named  as  executor  therein, 
having  been  appointed  as  such,  he  immediately  accepted  the  trust,  and 
gave  bond  as  required  by  law  and  the  order  of  the  county  court.  This 
being  so,  the  important  question  is  as  to  the  effect  to  be  given  to  the 
language  of  the  section  which  declares  that  "the  county  court  shall 
issue  letters  testamentary  *  ♦  *  to  the  person  named  executor 
therein,  if  he  is  legally  competent."  Both  the  county  court  and  the  cir- 
cuit court  found  as  a  matter  of  fact  and  as  a  conclusion  of  law  that 
Leo  E.  Saxe  was  legally  competent  to  act  as  such  executor. 

The  findings  of  the  court  are  amply  supported  by  the  evidence. 
There  is  no  claim  that  he  was  wanting  in  mental  capacity  to  perform 
the  duties  of  executor.  The  objection  that  he  was  irresponsible  seems 
to  be  answered  by  his  promptly  giving  the  requisite  bond.  The  other 
objections  are  to  the  effect  that  he  abused  his  stepmother,  was  ob- 
noxious to  the  objecting  heirs,  and  that  his  character  was  not  such  as 
to  inspire  confidence  and  trust.  The  objections  go  to  his  temper,  his 
disposition,  his  habits,  and  his  moral  character,  rather  than  to  his  ca- 
pacity to  do  business.  Are  such  objections  available  to  set  aside  the  ex- 
pressed wish  of  the  testator? 

A  recent  work  declares  that:  "An  executor,  according  to  the  com- 
mon-law doctrine,  derives  his  office  solely  from  the  will  by  which  he  is 
appointed,  and  not  from  the  probate,  which  is  held  to  be  only  evidence 
of  his  right.  In  many,  if  not  all,  of  the  states  of  the  Union  the  author- 
ity of  an  executor,  while  derived  primarily  from  the  will,  is  not  de- 
rived solely  therefrom,  and  is  not  complete  until  the  executor  has  qual- 
ified by  complying  with  certain  statutory  requirements,  and  has  re- 
ceived letters  testamentary  from  a  court  of  competent  jurisdiction; 
but  the  nomination  contained  in  the  will  cannot  be  disregarded  by  the 
court  unless  the  person  named  is  for  some  reason  disqualified  to  ac<-  as 
executor,  and  the  authority  of  the  court  in  the  premises  is  limited  to 
qualifying  the  executor  and  issuing  letters  testamentary,  and  does  not 
extend  to  the  appointment,  as  that  authority  pertains  to  the  testator 
alone,"  11  Am.  &  Eng.  Ency.  Law  (2d  Ed.)  744,  745,  cited  approv- 
ingly in  Re  Will  of  Somervaill,  104  Wis.  72,  74,  80  N.  W.  65.  To  the 
same  effect,  Schouler's  Ex.  &  Admin's  (2d  Ed.)  §  33,  Such  rule  is 
amply  supported  by  authority.    *    *    * 

The  direction  of  the  testator  in  naming  his  executor  is  not  to  be  dis- 
regarded except  as  prescribed  by  statute.  This  court  has  recently  re- 
versed a  case  for  failure  to  follow  the  direction  of  the  testator  in  the 
appointment  of  a  person  to  fill  a  vacancy  as  trustee.  Cole  v.  City  of 
Watertown,  119  Wis.  133,  96  N.  W,  538.  Counsel  for  the  appellants 
cite  Estate  of  Pike,  45  Wis.  391 ;  Kimball's  Appeal,  Id.  That  was 
a  proceeding  to  remove  an  executor  under  a  statute  now  embraced  in 


Ch.    1)  GRANT    AND    REVOCATION. 


529 


section  3803,  Rev.  St.  1898.  Such  statute  expressly  authorized  the 
county  court  to  remove  an  executor  who  should  "neglect,  after  due 
notice  given  by  the  county  court,  to  render  his  account  and  settle  the 
estate  according  to  law,  or  to  perform  any  judgment  of  the  court," 
or  who  should  "abscond,  or  become  insane,  or  otherwise  incapable  or 
unsuitable  to  discharge  the  trust"  imposed  upon  him.  It  will  be  ob- 
served that  the  several  things  which  may  thus  authorize  removal  are 
all  such  as  occur  after  he  is  appointed. 

It  is  enough  to  say  that  the  case  at  bar  does  not  come  within  the 
provisions  of  that  section.  We  must  hold  that  Leo  E.  Saxe  was  le- 
gally competent  to  act  as  such  executor  within  the  meaning  of  section 
3792,  Rev.  St.  1898,  and  hence  that  that  statute  was  mandatory,  and 
required  the  county  court  to  give  effect  to  the  expressed  wish  of  the 
testator  by  appointing  him  as  such  executor. 

The  judgment  of  the  circuit  court  is  affirmed.''' 


In  re  SHAW'S  ESTATE. 
(High  Court  of  Justice,  Probate  Division.     [1905]   P.  92.) 

Probate  motion. 

George  Shaw  died  on  August  12,  1904.  He  left  a  will  and  codicil 
dated  respectively  March  13,  1901,  and  September  3,  1902,  whereby 
he  named  as  his  executors  Richard  Skerrett,  George  Overton  Aston, 
Fanny  Elizabeth  Shaw,  and  Ellen  Louisa  Shaw. 

On  September  2,  1904,  probate  was  granted  to  all  except  Richard 
Skerrett,  who  had  previously  renounced. 

About  September  1,  1904,  Fanny  Elizabeth  Shaw  was  attacked  with 
paralysis,  rendering  her  unable  to  sign  her  name;  and  her  mental 
faculties  also  became  affected. 

Notice  of  motion  was  now  filed  on  behalf  of  George  Overton  Aston 

25  See  Breen  v.  Kehoe.  142  Mich.  58,  105  N.  W.  28,  1  L.  R.  A.  (N.  S.)  349. 
11.3  Am.  St.  Rep.  558  (1905) :  Pfefferle  v.  Herr  (N.  J.  Prerog.)  71  Atl.  6S9 
(1909);  Clancy  v.  McElroy,  30  Wash.  567,  70  Pac.  1095  (1902);  In  re  Mc- 
Knight's  Will.  80  App.  Div.  284.  80  N.  Y.  Supp.  251  (1903).  See.  also.  54  Am. 
Dec  518,  note.  On  the  right  of  nonresidents  to  act  as  executors  or  admin- 
istrators, see  In  re  Rice's  Estate,  158  INIich.  53,  122  N.  W.  212  (1909) :  Warren 
&  O.  V.  R.  Co.  V.  Waldrop  (Ark.)  123  S.  W.  792  (1909) ;  In  re  Peele's  Estate, 
85  S.  C.  140,  67  S.  E.  135  (1910);  1  L.  R.  A.  (N.  S.)  341.  note;  113  Am.  St. 
Rep.  562,  note.  On  the  appointment  of  receivers  for  decedent's  property,  see 
72  Am.  St.  Rep.  63-66,  note. 

In  McFarlan  v.  McFarlan,  155  Mich.  652,  119  N.  W.  1108  (1909),  a  petition  by 
the  sole  creditor  of  the  estate  to  remove  the  widow  as  administratrix,  on  the 
ground  that  the  intestate  had  conveyed  property  to  her  in  fraud  of  the  creditor 
and  that  the  estate  was  insolvent,  was  denied  because  the  creditor  had  an 
adequate  remedy  by  suit  in  equity  to  set  aside  the  conveyance.  But  see 
Flynn  v.  Flynn,  183  Mass.  365,  67  N.  E.  314  (1903),  where  the  court  dismissed 
such  a  suit  in  equity. 
Cost.  Wills— 34 


530  PROBATE    AND    ADMINISTRATION.  (Part  3 

and  Ellen  Louisa  Shaw  to  revoke  the  probate,  and  for  a  fresh  grant 
of  probate  to  be  made  to  themselves,  reserving  power  to  Fanny 
Elizabeth  Shaw  to  take  probate  if  and  when  she  should  recover. 

The  next  of  kin  of  Fanny  Elizabeth  Shaw  had  been  served  with 
notice  of  the  motion. 

GoRELL  Barnes,  J.  The  note  in  Tristam  and  Coote's  Probate 
Practice  (13th  Ed.)  p.  191,  is  correct.  The  case  of  In  the  Goods  of 
Sowerby  is  reported  in  65  L.  T.  764,  from  which  it  appears  that  the 
fresh  grant  was  made,  limited  till  such  time  as  the  lunatic  executor 
should  recover  his  sanity ;  but  when  the  matter  came  to  be  worked 
out  in  the  registry,  it  was  probably  found  that  the  more  convenient 
course  was  not  to  limit  the  grant,  but  to  let  the  other  executor  take 
probate,  reserving  power  to  the  lunatic  to  apply  to  join  in  the  probate, 
should  he  desire  to  do  so  on  recovering  his  sanity.  In  the  present 
case  I  revoke  the  probate,  and  make  a  fresh  grant  to  the  applicants, 
reserving  power  to  Fanny  Elizabeth  Shaw  to  join  in  this  grant,  should 
she,  on  recovering  her  sanity,  wish  to  do  so. 


McINTYRE  et  al.  v.  PROCTOR  et  al. 

(Supreme  Court  of  North  Carolina.  1907.    145  N.  C.  288,  59  S.  E.  39,  13  L.  R. 

A.  [N.  S.]  438.) 

Special  proceedings  by  Stephen  Mclntyre  and  another  against  Liz- 
zie G.  Proctor  and  others  to  be  allowed  to  resign,  as  executors  of  a 
will  of  Edward  Knox  Proctor,  Jr.,  deceased. 

HOKE,  J.^'  The  allegations  of  the  petition  relevant  to  the  inquiry 
admitted  by  the  answer  and  found  to  be  true  on  the  hearing  are  as 
follows : 

"(3)  That  your  petitioners  have  collected  all  the  assets  belonging 
to  said  estate,  and  have  paid  all  debts  due  by  the  said  estate,  and  have 
in  all  respects  complied  with  the  terms  and  provisions  of  the  said  last 
will  and  testament,  and  have  made  all  investments  as  therein  pro- 
vided, and  have  satisfied  all  legacies  to  be  satisfied,  all  of  which  will 
more  fully  appear  from  the  annual  accounts  filed  by  your  petitioners 
as  executors  in  the  office  of  the  clerk  of  the  superior  court  of  Robeson 
county,  to  which  said  reports  reference  is  hereby  made. 

"(4)  That  your  petitioners  have  so  far  administered  the  said  trust 
that  nothing  now  remains  to  be  done  except  to  collect  the  rents  and 
profits  from  the  real  estate  owned,  and  the  dividends  from  the  moneys 
invested,  and  to  expend  such  portions  thereof  as  may  be  necessary 
for  the  support,  maintenance,  and  education  of  the  family  of  said  E. 
K.  Proctor,  Jr.,  as  by  the  said  will  provided. 

"(5)  That  your  petitioners  are  informed  and  believe  that,  under  the 
terms  and  provisions  of  the  said  will,  the  said  trust  cannot  be  finally 

ao  The  statement  of  facts  is  omitted. 


Ch.    1)  GRANT    AND    REVOCATION.  531 

closed  and  settled  until  the  youngest  child  of  the  said  E.  K.  Proctor, 
Jr.,  attains  his  majority,  and,  inasmuch  as  said  youngest  child,  Robert 
W.  Proctor,  is  now  of  the  age  of  about  8  years,  it  will  be  some  13 
years  before  said  trust  can  be  finally  closed  and  settled. 

"(6)  That  the  administration  of  the  said  period  of  13  years  will  be 
very  expensive  to  the  said  estate,  and  a  heavy  charge  upon  the  said 
children  and  devisees  of  the  said  E.  K.  Proctor,  Jr.,  the  same  to  be  the 
more  considered  on  account  of  the  fact  that  the  utmost  economy  must 
be  used  in  order  that  there  may  be  property  sufficient  to  provide  a  sup- 
port, maintenance,  and  education  for  all  of  the  said  children  until  they 
attain  their  majority. 

"(7)  That  the  widow  and, all  the  children  of  the  said  E.  K.  Proc- 
tor, Jr.,  reside  in  the  town  of  Lumberton,  N.  C,  and  no  general  or 
testamentary  guardian  has  been  appointed  for  'the  minor  children. 
That  all  of  the  said  children,  except  James  D.  Proctor,  are  infants  and 
reside  with  their  mother. 

"(8)  That  James  D.  Proctor,  eldest  son  of  E.  K.  Proctor,  Jr.,  has 
attained  his  majority,  and  is  now  engaged  in  the  practice  of  law  in 
the  town  of  Lumberton,  N.  C,  and  the  widow  and  children  of  said 
E.  K.  Proctor,  Jr.,  reside  with  him,  under  his  care  and  protection. 

"(9)  That  your  petitioners  believe,  and  so  allege,  that  it  would  be 
to  the  best  interests  of  the  widow  and  children  of  the  said  E.  K.  Proc- 
tor, Jr.,  if  the  management  of  the  said  estate  and  the  care  and  control 
thereof  could  be  turned  over  to  James  D.  Proctor,  for  the  reason  that 
the  said  James  D.  Proctor,  residing  as  he  does  with  the  others  of  the 
family,  is  in  a  better  position  to  know  their  actual  necessities  and  to 
exercise  greater  economy  in  their  support  and  maintenance  than  can 
the  present  executors,  and  for  the  further  reason  that  no  commissions 
would  be  charged  by  him  for  his  services  in  closing  up  the  said  trust 
and  estate. 

"(10)  That  your  petitioners  have  consulted  Mrs.  Lizzie  G.  Proctor, 
widow  of  E.  K.  Proctor,  Jr.,  and  the  children  who  are  capable  of  un- 
derstanding, and  they  agree  with  your  petitioners,  and  are  desirous, 
that  your  petitioners  be  allowed  to  resign  as  executors  and  trustees 
of  the  estate  of  E.  K.  Proctor,  Jr.,  and  that  the  said  James  D.  Proctor 
be  appointed  in  their  place  and  stead. 

"(11)  That  your  petitioners  have  consulted  the  said  James  D.  Proc- 
tor, and  he  is  willing  to  assume  the  duties  which  would  be  imposed 
upon  him  in  case  of  his  appointment  as  substituted  trustee  of  the  said 
estate,  and  he  is  prepared  to  give  such  bond  as  the  court  may  require 
of  him  as  a  condition  precedent  to  this  appointment. 

"(12)  That  your  petitioners  are  desirous  of  filing  their  last  annual 
account,  and  of  resigning  their  executorship  and  trusteeship  in  favor 
of  the  said  James  D.  Proctor,  and  there  are  many  reasons,  business 
and  sentimental,  incapable  of  being  set  forth  here,  why  it  will  be  to 
the  benefit  of  the  widow  and  heirs  at  law  of  the  said  E.  K.  Proctor, 
Jr.,  that  such  change  be  made." 


532  PROBATE    AND    ADMINISTRATION.  (Part  3 

And  on  these  facts  we  think  the  clerk  correctly  ruled  that  he  had 
no  power  to  accept  the  proposed  resignation  and  appoint  a  successor. 

At  common  law,  using  the  term  in  its  broadest  sense,  an  administra- 
tor and  executor  who  had  duly  qualified  and  entered  on  the  perform- 
ance of  his  duties  had  no  right  at  his  own  desire  and  for  his  own  con- 
venience to  resign  his  office,  and  so  put  aside  responsibility  for  the 
further  performance  of  his  duties.  This  has  been  directly  held  with 
us  in  the  case  of  Washington,  Ex'r,  v.  Blunt;  43  N.  C.  253 ;  and  with- 
out statutory  authority  a  clerk  for  a  like  purpose  has  no  right  to  per- 
mit such  resignation. 

Our  statutes  in  various  sections  (Revisal  1905,  §§  31-34-35-37-38) 
confer  on  the  clerks  the  power  to  revoke  the  letters  of  administrations 
for  certain  reasons  therein  specified;  section  38,  containing  the  more 
general  provisions  on  the  subject,  being  as  follows:  "If  it  is  made  to 
appear  that  the  person  to  whom  the  letters  have  been  issued  is  legally 
incompetent,  or  has  been  guilty  of  default  or  misconduct  in  the  execu- 
tion of  his  office,  or  that  the  letters  have  been  obtained  by  false  and 
fraudulent  misrepresentations."  And  no  doubt  for  causes  specified  in 
the  statute  or  equivalent  causes  as  indicated  by  way  of  suggestion 
only,  in  Tulburt  v.  Hollar,  102  N.  C.  406,  9  S.  E.  430,  the  clerk  could 
permit  the  officer  to  resign  and  revoke  the  letters  on  such  resigna- 
tion. 

But  the  power  exists  for  the  good  of  the  estate  and  its  proper  ad- 
ministration, and  should  only  be  exercised  by  reason  of  some  unfitness 
or  unfaithfulness  on  the  part  of  the  trustee,  and  never  simply  for  his 
convenience  or  because  the  parties  interested  may  desire  it.  While 
the  principle  is  well  established,  both  as  to  administrators  and  ex- 
ecutors, it  is  more  especially  appropriate  to  the  case  of  executors  who 
are  selected  by  the  testator  himself,  usually  because  of  his  knowledge 
of  their  business  capacity  and  his  confidence  in  their  integrity  or  both ; 
and,  though  they  have  in  the  first  instance  a  right  to  decline  the  office, 
after  they  have  accepted  and  are  qualified,  they  are  not  afterwards 
permitted  to  resign,  and  voluntarily  put  aside  its  responsibilities. 

This  case  presents  a  good  illustration  of  the  doctrine  and  its  proper 
application.  A  perusal  of  the  will  and  the  facts  submitted  in  connec- 
tion with  the  administration  indicates  that  there  is  a  good  amount  of 
property  to  be  invested  and  managed,  and  that  the  duties  incident  to 
the  trust  will  continue  for  some  length  of  time.  The  testator  has 
selected  two  of  his  friends  to  administer  his  estate,  and  carry  out  his 
wishes,  on  account  of  their  capacity  and  approved  faithfulness,  and 
they  will  no  doubt  continue  to  justify  his  confidence.  There  is  no  rea- 
son alleged  or  shown  why  they  should  be  displaced,  and  the  judgm^ent 
of  the  clerk  should  have  been  affirmed. 

Let  this  be  certified  and  order  entered  accordingly.     Reversed.^'' 

2T  But  see  Marsh  v.  People,  15  111.  284  (18.53).  where  the  court  said  (page 
287):  "The  court  had  power  to  remove  him  [the  administrator]  from  ofBce, 
and  the  acceptance  of  his  resignation  may  be  considered  as  an  exercise  of 


Ch.    1)  GRANT    AND    REVOCATION.  533 


SECTION  4.— THE  REVOCATION   OF   PROBATE   AND   OF 

ADMINISTRATION  " 


SEMINE  V.  SEMINE. 

(Court  of  King's  Bench,  1673.    2  Lev.  90.) 

Administration  was  granted,  and  the  administrator  by  virtue  there- 
of being  possessed  of  a  term,  made  a  lease  of  the  land,  and  after  was 
a  citation  to  repeal  the  administration,  but  it  was  affirmed ;  upon  which 
sentence  of  affirmation  an  appeal  was  sued,  and  the  sentence  of  af- 
firmation thereby  repealed,  and  the  first  administration  repealed,  and 
administration  granted  to  another.  And  by  Hale  and  the  whole  court, 
this  new  administrator  shall  not  avoid  the  lease  of  the  first  adminis- 
trator, for  this  is  only  a  repeal  of  the  sentence  in  the  citation,  and  so 
is  in  the  nature  of  a  suit  on  the  citation;  and  so  it  is  all  one  as  if  the 
first  administration  had  been  avoided  in  the  suit  upon  the  citation,  and 
not  as  if  the  appeal  had  originally  been  brought  upon  the  first  admin- 
istration, which  thereby  had  been  totally  annulled.  6  Co.  [18b],  Pack- 
man's Case.^® 

that  power.  The  refusal  of  an  administrator  to  perform  the  duties  of  his 
trust  is  a  sufficient  cause  for  revolving  liis  authority  nnd  conferring  it  upon 
another;  and  the  removal  of  one  of  several  administrators,  without  appoint- 
ing another  in  his  place,  devolves  upon  the  others  the  entire  management  of 
the  estate.  The  resignation  may  be  regarded  as  a  declaration  by  Melleu  that 
he  would  no  longer  participate  in  the  administration  of  the  estate,  and  the 
acceptance  bv  the  court  as  a  revocation  of  his  authority."  See,  also,  Thayer 
V.  Homer,  11  Mete.  (Mass.)  104  (1846) ;  Comstock  v.  Crawford,  3  Wall.  396, 
18  L.  Ed.  34  (1865);  Balch  v.  Hooper,  32  Minn.  158,  20  N.  W.  124  (1884); 
Ramp  V.  McDaniel,  12  Or.  108,  6  Pac.  456  (1885);  13  Prob.  Rep.  Ann.  325, 
note.  On  the  renunciation  of  an  executor,  as  distinguished  from  his  resigna- 
tion, see  Cooke  v.  Stevens,  [1897]  1  Ch.  422 ;   7  Prob.  Rep.  Ann.  68,  note. 

2  8  For  a  discussion  of  the  revocation  of  probate  of  a  will,  see  12  Prob. 
Rep.  Ann.  218,  note. 

2  9  An  appeal  from  an  order  appointing  an  administrator  suspends  the 
order.     Zimmer  v.  Saler,  155  Mich.  388,  119  N.  W.  433  (1909). 

That  a  revocation  of  probate  will  not  be  ordered  on  issues  tried  and  deter- 
mined at  the  probate,  except  for  fraud  on  the  court,  or  for  some  accident, 
mistake,  or  misunderstanding  in  the  proceedings  before  the  court,  which  in 
justice  calls  for  a  revocation,  is  held  in  Boardman  v.  Hesseltine,  200  Mass. 
495,  86  N.  E.  931  (1909).  Even  in  the  case  of  fraud,  the  person  seeking  rev- 
ocation mav  fail  because  of  his  delay.  See  Miller  v.  Miller's  Estate,  69  Neb. 
441,  95  N.  "W.  1010  (1903). 


534  PROBATE    AND    ADMINISTRATION.  (Part    3 

ALLEN  V.  DUNDAS. 

(Court  of  King's  Bench,   1789.     3  T.   R.  125.) 

This  was  an  action  on  the  case  for  money  had  and  received  to  the 
use  of  the  intestate,  and  to  the  use  of  the  plaintiff  as  administrator,  to 
which  the  defendant  pleaded  the  general  issue.  And  on  the  trial  a 
special  verdict  was  found,  stating  in  substance  as  follows.  The  de- 
fendant, as  treasurer  of  the  navy,  was  indebted  to  the  intestate  in  his 
lifetime  in  £58.  13s.  6d.  for  money  had  and  received  to  his  use.  Priest- 
man  died  on  the  2d  of  June  1784.  On  the  13th  of  August  1785,  one 
Robert  Brown  proved  in  the  Prerogative  Court  of  the  Archbishop  of 
Canterbury,  a  forged  paper  writing,  dated  the  18th  of  May  1784,  pur- 
porting to  be  the  last  will  of  Priestman,  otherwise  Handy,  whereby  he 
was  supposed  to  have  appointed  Brown  the  sole  executor  thereof; 
and  a  probate  of  that  supposed  will  issued  in  due  form  of  law,  under 
the  seal  of  that  court,  on  the  same  day,  in  favor  of  Brown.  The  de- 
fendant, not  knowing  the  will  to  have  been  forged,  and  believing 
Brown  to  be  the  rightful  executor,  on  Brown's  request  paid  him  £58. 
13s.  6d.,  being  the  whole  balance  then  due  from  the  defendant  to 
Priestman.  On  the  21st  of  July  1787,  Brown  was  called  by  citation, 
at  the  suit  of  John  Priestman  the  father,  and  next  of  kin  of  the  de- 
ceased, in  the  Prerogative  Court  of  the  Archbishop  of  Canterbury, 
touching  the  validity  of  such  supposed  will ;  and  such  proceedings 
were  thereupon  ha<i  in  that  court,  that  the  will  and  probate  were  de- 
clared null  and  void ;  that  Thomas  Priestman  died  intestate ;  and  that 
John  Priestman  the  father  was  his  next  of  kin.  'And  on  the  31st  of 
March  1788,  letters  of  administration  of  the  goods,  etc.,  of  Thomas 
Priestman  were  granted  by  that  court  in  due  form  of  law  to  the  plain- 
tiff, as  attorney  of  John  Priestman.     But  whether,  &c. 

AsHHURST,  J.  I  am  of  opinion  that  the  plaintiff  has  no  right  to 
call  on  the  defendant  to  pay  this  money  a  second  time,  which  was  paid 
to  a  person  who  had  at  that  time  a  legal  authority  to  receive  it.  It 
is  admitted,  that  if  he  had  made  this  payment  under  the  coercion  of  a 
suit  in  a  court  of  law,  he  would  have  been  protected  against  any  other 
demand  for  it;  but  I  think  that  makes  no  difference.  For  as  the 
party  to  whom  the  payment  was  made  had  such  authority  as  could  not 
be  questioned  at  the  time,  and  such  as  a  court  of  law  would  have  been 
bound  to  enforce,  the  defendant  was  not  obliged  to  wait  for  a  suit, 
when  he  knew  that  no  defence  could  be  made  to  it.  This  therefore 
cannot  be  called  a  voluntary  payment.  This  is  different  from  pay- 
ments under  forged  bonds  or  bills  of  exchange;  for  there  the  party 
is  to  exercise  his  own  judgment,  and  acts  at  his  peril.  A  payment  in 
such  a  case  is  a  voluntary  act,  though  perhaps  the  party  is  not  guilty 
of  any  negligence  in  point  of  fact.  But  here  the  defendant  acted  un- 
der the  authority  of  a  court  of  law ;  every  person  is  bound  to  pay  def- 
erence to  a  judicial  act  of  a  court  having  competent  jurisdiction.    Here 


Ch.    1)  GRANT    AND    REVOCATION.  535 

the  spiritual  court  had  jurisdiction  over  the  subject  matter;  and  every 
person  was  bound  to  give  credit  to  the  probate  till  it  was  vacated. 
The  case  of  a  probate  of  a  supposed  will  during  the  life  of  the  party 
may  be  distinguished  from  the  present,  because  during  his  life  the 
ecclesiastical  court  has  no  jurisdiction,  nor  can  they  inquire  who  is  his 
representative;  but  when  the  party  is  dead,  it  is  within  their  juris- 
diction. Besides,  the  distinction  taken  by  the  defendant's  counsel  be- 
tween cases  where  a  will  is  set  aside  on  an  appeal,  or  on  a  citation, 
seems  to  have  some  foundation.  In  the  former  the  original  sentence 
is  as  if  it  had  never  existed;  in  the  latter,  the  will  is  only  repealed, 
and  all  acts  under  it  till  the  repeal  are  good.  But  the  foundation  of  my 
opinion  is,  that  every  person  is  bound  by  the  judicial  acts  of  a  court 
having  competent  authority;  and  during  the  existence  of  such  ju- 
dicial act,  the  law  will  protect  every  person  obeying  it. 

BuLLER,  J.^"  The  first  question  to  be  considered  is.  What  is  the 
effect  of  a  probate?  It  has  been  contended  by  the  plaintiff's  counsel, 
first,  that  it  is  not  a  judicial  act ;  and  secondly,  that  it  is  not  conclusive. 
But  I  am  most  clearly  of  opinion  that  it  is  a  judicial  act;  for  the  ec- 
clesiastical court  may  hear  and  examine  the  parties  on  the  different 
sides,  whether  a  will  be  or  be  not  properly  made;  that  is  the  only 
court  which  can  pronounce  whether  or  not  the  will  be  good.  And  the 
courts  of  common  law  have  no  jurisdiction  over  the  subject.  Secondly, 
the  probate  is  conclusive  till  it  be  repealed;  and  no  court  of  common 
law  can  admit  evidence  to  impeach  it.  Then  this  case  was  compared 
to  a  probate  of  a  supposed  will  of  a  living  person ;  but  in  such  a  case 
the  ecclesiastical  court  have  no  jurisdiction,  and  the  probate  can  have 
no  effect.  Their  jurisdiction  is  only  to  grant  probates  of  the  wills  of 
dead  persons.  The  distinction  in  this  respect  is  this;  if  they  have 
jurisdiction,  their  sentence,  as  long  as  it  stands  unrepealed,  shall  avail 
in  all  other  places:  but  where  they  have  no  jurisdiction,  their  whole 
proceedings  are  a  nullity.    *    *    * 

Judgment  for  the  defendant.'^ 

■So  Part  only  of  the  opinion  of  Duller,  J.,  Is  given.  Tlie  concurring  opinion 
of  Grose,  J.,  is  omitted. 

31  On  the  validity  of  acts  done  by  an  executor  or  administrator  under 
letters  testamentary,  or  of  administration,  afterwards  revoked  or  held  invalid, 
see  21  L.  R.  A.  146  note;  11  Prob.  Rep.  Ann.  55G,  note.  On  revocation  of 
probate  as  a  termination  of  the  appointment  of  an  administrator  with  the 
will  annexed,  see  21  L.  R.  A.  (N.  S.)  975,  note. 


536  PROBATE    AND    ADMINISTRATION.  (Part    3 

In  re  MEARS'  ESTATE. 
(Supreme  C!ourt  of  South  Carolina,  1906.     75  S.  C.  482,  56  S.  B.  7.) 

In  the  matter  of  the  estate  of  J.  H.  Mears.  Application  by  James 
F.  Thames  and  P.  H.  Mears  for  probate  of  an  alleged  will.  Applica- 
tion denied,  and  petitioners  appeal. 

Woods,  J.*^  *  *  *  'pj^g  court  of  probate,  *  *  *  on  August 
26,  1904,  adjudged  and  decreed  that  the  said  Wm.  H.  Mears  died  in- 
testate, and  duly  appointed  M.  D.  Rouse,  J.  W.  Mears,  and  H.  W. 
Mears  coadministrators  of  his  said  estate.  These  officers  duly  qual- 
ified, entered  upon  their  duties,  and  are  still  engaged  in  performing 
the  same.  This  administration  has  never  been  revoked.  On  October 
3,  1904,  S.  C.  Cunningham,  as  a  judge  of  probate,  *  *  *  admitted 
to  probate  a  written  instrument,  dated  the  11th  day  of  April,  1899, 
purporting  to  be  the  last  will  and  testament  of  W.  H.  Mears,  *  *  * 
[and]  issued  letters  testamentary.  *  *  *  j.  w.  Mears  and  M.  D. 
Rouse  in  their  own  right  and  as  administrators  of  the  estate  of  W.  H. 
Mears,  appealed  therefrom  to  [the  circuit  court,  which  decided  that] 
the  will  could  not  be  probated  and  letters  testamentary  issued  to  the 
executors  therein  named  until  the  previous  grant  of  letters  of  admin- 
istration had  been  revoked  by  a  direct  proceeding  instituted  for  that 
purpose.  [Later  the  probate  judge  again  admitted  the  will  to  probate, 
the  same  parties  again  appealed,  and  the  Circuit  Court]  adjudged  this 
last  probate  of  the  will  also  to  be  of  no  force,  and  revoked  it.    *    *    * 

2.  The  vital  question  is,  may  a  will  be  admitted  to  probate  and  let- 
ters testamentary  granted,  without  first  obtaining  by  an  independent 
proceeding  the  judicial  annulment  of  letters  of  administration  pre- 
viously granted  on  the  supposition  of  intestacy?  So  far  as  we  can 
discover,  there  is  no  case  in  this  state  deciding  this  precise  question.  In 
accordance  with  the  generally  recognized  doctrine,  the  court  held  in 
Moore  v.  Smith,  11  Rich.  Law  (S.  C.)  569,  73  Am.  Dec.  122,  letters 
of  administration  on  the  estate  of  a  living  person  to  be  absolutely 
void.  But  this  is  put  on  the  ground  that  the  fact  of  the  death  is  es- 
sential to  any  jurisdiction  whatever  concerning  administration,  and 
when  that  fact  is  absent  the  attempt  to  place  another,  under  the.  name 
of  administrator,  in  charge  of  a  living  person's  estate,  is  a  mere  usurpa- 
tion. But  a  probate  court  has  jurisdiction  of  the  administration  of  the 
estates  of  deceased  persons,  whether  they  die  testate  or  intestate,  and 
hence  its  judgment  as  to  testacy  or  intestacy  is  valid  until  set  aside  by  a 
proper  proceeding  instituted  for  that  purpose. 

The  doctrine  is  also  established  in  this  state  that  the  acts  of  an  ad- 
ministrator in  the  due  course  of  administration  are  valid,  although  a 
will  be  afterwards  discovered  and  admitted  to  probate  (Benson  v.  Rice, 
2  Nott  &  McC.  [S.  C]  577)  and  this  is  true,  though  administration  be 

»2  Part  only  of  the  opinion  is  given. 


Ch.    1)  GRANT    AND    REVOCATION.  537 

obtained  by  fraudulent  suppression  of  the  will.  Foster  v.  Brown,  1 
Bailey  (S.  C.)  221,  19  Am.  Dec.  672;  Price  v.  Nesbit,  1  Hill's  Eq. 
(S.  C.)  -±61.  This  rule,  so  long  ago  adopted  by  our  courts,  is  now  gen- 
erally recognized.  Dobler  v.  Strobel,  81  Am.  St.  Rep.  555,  note.  The 
meaning  of  the  rule  is  that  the  will  does  not  impair  the  validity  of  the 
administration  until  adjudged  by  the  proper  authority  to  be  the  will, 
but  it  does  not  mean  that  the  will  may  be  admitted  to  probate  and  the 
administration  thereby  ended.  True,  there  is  support  in  reason  and 
authority  for  the  proposition  that,  after  discovery  of  a  will,  administra- 
tion previously  granted  cannot  be  impeached  in  a  collateral  proceeding, 
and  can  be  annulled  only  by  a  direct  proceeding.  But  the  probate  of 
a  will  is  practically  a  direct  proceeding  looking  to  placing  a  testator's 
property  in  the  hands  of  his  executors,  and  adjudging  that  all  others, 
including  administrators  having  it  in  possession,  should  surrender  it 
to  the  executors  for  administration.  Indeed,  it  is  the  proceeding  laid 
down  in  the  statute  to  the  exclusion  of  all  others. 

If  the  view  should  be  adopted  that  a  will  could  not  be  probated  un- 
til a  decree  had  been  obtained  in  an  independent  proceeding  annulling 
a  previous  grant  of  letters  of  administration,  the  whole  question  of 
will  or  no  will  would  necessarily  be  tried  in  such  independent  pro- 
ceedings, whereas  the  statute  provides  it  must  be  tried  only  in  pro- 
ceedings'instituted  to  have  the  will  admitted  to  probate.     Though  a 
different  rule  prevails  in  some  jurisdictions,  in  this  state  if  an  admm- 
istrator  moves  out  of  the  state  the  grant  of  letters  to  another  is  equiv- 
alent to  a  judgment  of  revocation.    McLaurin  v.  Thompson,  Dud.  335. 
The  case  of  Petigru  v.  Ferguson,  6  Rich.  Eq.  (S.  C.)  378,  is  not  an 
authority  to  the  contrary,  for  the  principle  was  different.    Holding  the 
intestate  to  have  been  a  resident  of  that  county,  the  ordinary  of  Abbe- 
ville granted  letters  of  administration.     Subsequently  the  ordinary  of 
Edgefield  county  also  issued  letters,  holding  the  intestate  to  have  been 
a  resident  of  Edgefield.     The  court  of  appeals  did  hold  the  seiond 
grant  null  because  the  first  had  not  been  vacated,  but,  in  that  instance, 
the  first  grant  could  not  be  regarded  annulled  by  the  second  for  the 
reason  that  the  ordinary  of  Edgefield  county  had  no  jurisdiction  to  re- 
voke letters  of  administration  issued  by  the  ordinary  of  Abbeville 
county.    If  the  ordinary  of  Abbeville  county,  who  had  issued  the  first, 
had  also  issued  the  second  letters,  this  would  have  been  a  revocation 
of  the  first  administration,  under  the  authority  of  McLaurin  v.  Thomp- 
son, supra. 

We  conclude  the  probate  of  the  will  of  W.  H.  Mears  was  the  proper 
legal  proceeding  looking  to  the  revocation  of  the  previous  admiilistra- 
tion,  and  the  only  remedy  for  those  who  had  been  appointed  admin- 
istrators was  to  require  proof  of  the  will  in  solemn  form. 

On  these  grounds,  the  judgment  of  the  circuit  court  is  reversed. 


538  PROBATE    AND    ADMINISTRATION.  (Part  3 

STEELE  V.  RENN. 

(Supreme  Ctourt  of  Texas,  1878.     50  Tex.  467,  32  Am.  Rep.  605.) 

Moore,  C.  J.  This  is  an  action  of  trespass  to  try  title,  brought 
by  appellees  December  12,  1872,  for  the  recovery  from  appellants  of 
lots  3  and  4  in  block  23,  in  the  town  of  Rusk,  Cherokee  county,  to 
which  both  parties  claim  title  under  Casper  Renn,  deceased,  in  whom 
the  title  is  admitted  to  have  been  at  his  death.  Appellees  claim  as  the 
heirs,  and  appellants  as  purchasers  in  good  faith  from  H.  K.  Joice 
and  wife,  who  claimed  as  devisees  of  Renn. 

On  the  23d  of  December,  1864,  Casper  Renn  died  in  Rusk,  Cher- 
okee county,  where  he  had  for  some  years  previous  resided.  In  Jan- 
uary, 1865,  an  instrument  purporting  to  be  his  last  will  and  testament 
was  presented  to  the  court  for  probate  by  the  parties  therein  named  as 
executors.  Said  instrument  authorized  said  executors  to  administer 
and  settle  up  the  estate  in  accordance  with  its  terms  without  being 
subject  to  the  supervision  and  control  of  the  court.  After  due  notice 
of  the  application  had  been  given,  the  execution  of  the  instrument  was 
inquired  of  by  the  court,  whereupon  it  was  adjudged  to  be  the  last 
will  and  testament  of  said  Casper  Renn,  deceased;  and  the  property 
and  effects  belonging  to  his  estate  were  committed  to  said  parties 
named  as  executors,  to  be  by  them  administered  under  and  in  pursu- 
ance of  the  authority  purported  to  be  given  them  therein. 

On  the  3d  of  March,  1865,  said  executors  made  and  delivered  to 
said  Joice  and  wife  a  deed  for  said  lots  devised  to  them  by  said  will ; 
and  on  the  2d  of  December,  1865,  said  Joice  and  wife,  in  considera- 
tion of  $275  paid  them  by  Richard  G.  Steele,  as  recited  in  their  deed, 
sold  and  conveyed  them  to  said  Steele,  from  whom  they  were  sub- 
sequently purchased  by  appellant  Carter. 

Appellees,  who  are  brothers  and  sister  to  Casper  Renn,  deceased, 
were  at  the  date  of  his  death,  and  most  of  them  seem  to  be  still,  citi- 
zens of  Germany.  Some  time  in  the  summer  of  1865  B.  Renn,  one  of 
the  appellees,  came  to  Rusk,  Cherokee  county,  where  he  has  since  re- 
sided, to  look  after  the  estate  of  his  brother  on  behalf  of  his  brothers 
and  sister,  as  well  as  himself;  and  in  November,  1866,  prior  to  the 
sale  of  the  lots  from  Steele  to  Carter,  suit  was  instituted  by  said  B. 
Renn  in  the  name  of  the  brothers  and  sister,  heirs  of  said  Casper 
Renn,  deceased,  to  set  aside  and  revoke  the  probate  of  said  will,  charg- 
ing the  same  to  be  a  false  and  spurious  instrument,  and  not  in  fact  the 
will  of  said  Casper  Renn,  deceased.  In  1873  it  was  finally  so  deter- 
mined and  adjudged  by  this  court,  and  its  probate  ordered  to  be  re- 
voked and  annulled.  , 

On  the  trial,  the  facts  here  stated  having  been  proved,  appellants  in- 
troduced evidence  tending  to  prove  that  they  purchased  the  lots  in 
good  faith,  and  claimed  to  be  entitled  to  the  protection  of  the  court 
as  purchasers  for  value  without  notice  that  said  instrument  was  not 


Ch.    1)  GRANT    AND    REVOCATION.  539 

the  true  and  genuine  will  of  Casper  Renn,  deceased,  as  it  purported 
and  had  been  adjudged  to  be  by  its  probate;  whereupon  the  court  in- 
structed the  jury,  among  other  things,  as  follows:  "The  planitift's 
have  produced  in  evidence  a  conclusive  judgment  setting  aside  the 
pretended  will  of  Casper  Renn,  deceased,  and  declaring  it  null  and 
void,  and  that  his  heirs  at  his  death  were  invested  with  the  ownership 
of  all  of  his  estate.  When  Steele  purchased  from  Joice  he  took  no 
better  title  than  Joice  had,  which  has  been  shown  to  be  none  at  all,  and 
he  took  the  title  at  his  own  risk." 

If  this  is  a  correct  view  of  the  law,  evidently  appellants  have  no 
title  and  have  no  just  cause  to  complain  of  the  recovery  of  the  lots  by 
appellees.  On  the  other  hand,  if  it  is  erroneous,  as  it  necessarily 
controlled  the  verdict  of  the  jury  to  the  prejudice  of  appellants,  the 
judgment  must  be  reversed. 

The  practical  importance  of  the  question  raised  by  this  charge  is 
obvious.  If  the  views  of  the  court  are  held  to  be  correct,  no  title  de- 
rived from  a  devisee  but  may  be  swept  from  under  the  purchaser  at 
any  time,  however  remote,  while  the  probate  of  the  will  is  subject  to 
attack.  This  fact  when  known  must  cast  a  cloud  on  all  such  titles, 
lessen  their  market  value,  and  retard  their  transfer.  On  the  other 
hand,  if  the  instruction  does  not  correctly  state  the  law,  our  probate 
system  affords  but  slight  safeguards  to  nonresident  heirs  against  per- 
jury and  fraud.  These  considerations  induced  this  court  to  refrain 
from  a  decision  of  this  case  for  several  terms,  and  to  call  upon  the 
counsel  for  a  more  thorough  examination  of  the  law  applicable  to  it 
than  had  at  first  been  made  by  them ;  but  we  regret  to  say  that  so  far 
they  have  cited  us  no  case  bearing  directly  upon  the  point  presented, 
and  we  have,  to  a  considerable  extent,  to  decide  it  as  an  original  ques- 
tion. 

Appellants  insist  that  they  are  entitled  to  protection  as  innocent 
purchasers  notwithstanding  the  invalidity  of  the  will  from  which, their 
title  springs.  In  support  of  their  proposition  they  refer  us  to  the  case 
of  Jones  V.  Powles,  10  E.  C.  R.  310,  3  Myl.  &  K.,  581.  But  this  case 
merely  illustrates  the  rule  of  equity  protecting  purchasers  in  good 
faith  who  get  in  the  outstanding  legal  title,  but  leaves  unsettled  the 
main  difficulty,  viz. :  Although  he  may  have  purchased  in  good  faith, 
did  Steele  occupy  a  better  position  than  Joice  and  wife  would  if  they 
had  not  sold  the  lots  ?  Unquestionably  their  title  in  such  event  would 
have  fallen  with  the  revocation  of  the  probate  of  the  instrument  by 
which  they  purport  to  have  been  devised  to  them.  Gaines  v.  New  Or- 
leans, 6  Wall.  642,  18  L.  Ed.  950 ;  Gaines  v.  De  La  Croix,  6  Wall.  719, 
18  L.  Ed.  965.  But  while  our  conclusion  has  not  been  reached  with- 
out hesitancy  and  embarrassment,  we  think,  notwithstanding  the  dam- 
age to  which  absent  and  nonresident  heirs  may  thereby  be  exposed,  he 
does,  if  he  in  fact  purchased  in  good  faith,  and  that  public  policy  re- 
quires this  solution  of  the  question. 


54:0  PROBATE    AND    ADMINISTRATION.  (Part   3 

An  application  for  the  probate  of  a  will  is  a  proceeding  in  rem,  and 
the  judgment  of  the  court  upon  it  is  binding  upon  all  the  world  until 
revoked  or  set  aside.  Hodges  v.  Bauchinan,  8  Yerg.  (Tenn.)  186; 
Scott  V.  Calvit,  3  How.  (Miss.)  158 ;  State  of  California  v.  McGlynn, 
SO  Cal.  271,  81  Am.  Dec.  118 ;  3  Redf.  on  Wills,  63. 

Now,  it  has  often  been  held  that  acts  done  under  authority,  by  the 
judgment  of  a  court  having  jurisdiction  of  the  estate,  even  where  it  is 
being  administered  under  a  forged  will,  are  just  as  valid  and  effectual 
as  if  the  will  had  been  genuine;  that  a  payment  voluntarily  made  to 
the  executor  named  in  a  forged  will  is  a  valid  discharge  of  the  debt. 
Though  the  will  may  be  afterward  set  aside  and  annulled,  the  debtor 
cannot  be  required  to  pay  the  debt  a  second  time. 

If  the  pretended  will  had  required  the  executors  to  settle  the  will 
of  Renn  in  the  probate  court,  tlie  acts  done  by  them  in  pursuance  of 
the  orders  of  the  court  carrying  into  effect  provisions  of  the  will  could 
not  be  impeached  or  set  aside  to  the  injury  of  innocent  parties,  because 
they  have  a  right  to  rely  upon  the  validity  of  the  judgment  of  the 
court.  Moore  v.  Tanner's  Adm'r,  5  T.  B.  Mon.  (Ky.)  42,  27  Am. 
Dec.  35;  Parker  v.  Parker,  11  Cush.  (Mass.)  519;  King  v.  Bullock,  9 
Dana  (Ky.)  41;  Thompson  v.  Thompson,  9  Pa.  234;  Wyman  v. 
Campbell,  6  Port.  (Ala.)  243;  Ballow  v.  Hudson,  13  Grat.  (Va.)  682. 

Is  there  any  difference  in  respect  to  the  powers  of  the  executors 
where  the  purported  will  directs  the  settlement  of  the  estate  out  of 
the  court?  By  its  judgment  the  court  has  declared  the  instrument  to 
be  genuine.  This  judgment  is  binding  upon  all  the  world  until  re- 
versed or  annulled.  Must  innocent  parties,  when  they  act  upon  the 
faith  of  such  judgments,  do  so  at  the  peril  of  its  being  subsequently 
shown  to  be  erroneous  ?  There  is  evidently  a  broad  distinction  in  the 
position  of  a  party  claiming  to  be  an  innocent  purchaser  from  one  who 
has  merely  a  forged  deed,  and  that  of  a  like  purchaser  from  the  dev- 
isee in  a  forged  will.  In  the  former  case  the  true  owner  is  neither 
charged  with  notice  of  the  forged  deed,  nor  is  he  in  any  way  com- 
mitted to  or  estopped  from  denying  its  validity ;  while  in  the  latter 
the  will  is  adjudged  to  be  valid  by  a  court  of  competent  jurisdiction, 
in  a  proceeding  to  which  the  heir  is  a  party.  While  it  is  in  force  the 
heirs  are  bound  by  it,  and  cannot  deny  its  correctness  or  dispute  the 
validity  of  the  devise.  The  purchaser  from  the  devisee  is  authorized 
by  the  judgment  to  buy  from  him  on  the  faith  of  a  valid  judgment  of 
a  court  of  competent  jurisdiction,  to  which  the  heirs  are  parties,  by 
which  it  has  been  in  effect  determined  that  the  estate  of  the  testator 
vested  in  the  vendor  on  the  testator's  death.  The  heirs  being  bound 
by  the  judgment,  they  occupy  the  position  of  one  who  has  voluntarily 
parted  with  or  been  divested  of  his  title,  and  then  stands  by  and  sees 
it  sold  to  a  purchaser  in  good  faith  without  a  word  of  complaint. 
That  he  afterwards  asserts  his  title  and  has  the  judgment  reversed,  or 
gets  a  decree  canceling  the  probate  of  the  will,  does  not  mend  the 
matter. 


Ch.    1)  GRANT    AND    REVOCATION.  541 

The  purchase  has  been  consummated.  If  by  the  subsequent  re- 
versal of  the  judgment  he  can  annul  the  purchaser's  title,  he  makes 
an  innocent  party  the  victim  of  his  negligence  and  delay,  and  all  dis- 
tinction between  bona  fide  and  mala  fide  purchasers  is  destroyed. 

For  the  error  in  the  charge  of  the  court  the  judgment  is  reversed 
and  the  cause  remanded.     Reversed  and  remanded.' ' 


SHEPHARD  V.  RHODES. 

(Supreme  Court  of  Illinois,  1871.     60  111.  301.) 

Thornton,  J.^*  The  deceased  died  testate,  in  Pennsylvania,  where 
his  will  was  proved  and  recorded.  At  the  time  of  his  death  he  had 
creditors,  and  owned  real  estate,  in  Illinois. 

.  Without  any  knowledge  of  the  existence  of  the  will,  letters  of  admin- 
istration were  granted  to  Quimby,  in  this  state,  and  after  the  discov- 
ery of  the  will  they  were  revoked,  and  letters  with  the  will  annexed 
were  granted  to  appellant. 

If  the  letters  to  Quimby  were  valid,  then  the  claim  of  appellees  is 
barred,  having  been  presented  after  the  lapse  of  two  years  from  the 
grant  of  the  letters,  and  it  was  error  to  allow  it  to  be  paid  in  the  due 
course  of  administration. 

The  only  question,  therefore,  presented  by  the  record,  is,  were  the 
first  letters  void,  or  only  voidable? 

It  is  laid  down  in  Toller's  Law  of  Executors,  p.  119,  that  a  grant 
of  administration,  before  probate  and  refusal,  shall  be  void  if  the  will 
shall  afterwards  be  proved,  although  it  were  suppressed  or  its  ex- 
istence were  unknown.  The  author  declares  the  administration  a  null- 
ity in  such  case,  because  the  interest  of  the  executor  is  incapable  of 
being  divested.  This  is  referred  to  and  relied  upon  by  counsel  for 
appellees,  to  show  the  grant  to  Quimby  void. 

There  is  a  difference  in  the  facts  between  the  case  supposed  and  the 
one  at  bar.  In  this  case  the  probate  had  been  made  [in  Pennsylvania, 
October  15,  1866],  and  the  executors  had  refused  to  accept,  before 
the  appointment  of  Quimby  [in  Illinois,  August  5,  1867].*  The  grant 
of  administration  to  him  did  not,  therefore,  divest  the  executors.  They 
had  voluntarily  deprived  themselves  of  all  right  and  interest,  and  the 
reason  assigned  for  the  nullity  of  the  administration  did  not  exist. 

Reference  was  also  made  to  1  Williams  on  Executors,  367,  where  it 
is  said:    "If  administration  be  granted  on  the  concealment  of  a  will, 

88  See  Foulke  v.  Zimmerman,  14  Wall.  113,  20  L..  Ed.  785  (1871) ;  Thompson 
V.  Samson,  &4  CJal.  330,  30  Pac.  980  (1883).  But  see  Fallon  v.  Chidester,  46 
Iowa,  588,  26  Am.  Rep.  164  (1877). 

8  4  The  statement  of  facts  is  omitted. 

*Quimby  did  not  learn  that  deceased  died  testate  until  May,  1868,  when 
his  letters  were  revoked  on  his  petition  and  letters  with  the  will  annexed 
granted  to  Henry  M.  Shephard. 


542  PROBATE    AND    ADMINISTRATION.  (Part  3 

and  afterwards  a  will  appear,  inasmuch  as  the  grant  was  void  from 
the  commencement,  all  acts  performed  by  the  administrator  in  that 
character  shall  be  equally  void." 

The  same  author  says,  on  page  370,  that,  whether  the  administration 
be  void  or  voidable,  a  bona  fide  payment  to  the  administrator  of  a  debt 
due  to  the  estate  will  be  a  legal  discharge  of  the  debtor.  See,  also, 
Toller,  129.  It  was  also  held,  in  Allen  v.  Dundas,  3  T.  125,  that  the 
payment  of  money  to  an  executor  who  had  obtained  probate  of  a  forged 
will,  was  a  good  discharge.  • 

If  all  the  mesne  acts  of  an  administrator,  between  the  grant  of  let- 
ters and  the  revocation,  are  void,  then  there  is  a  manifest  inconsistency 
in  the  reasoning  in  the  books  to  which  reference  has  been  made.  From 
a  careful  reading  of  the  text  of  Toller  and  Williams,  both  writers  make 
a  marked  distinction  between  revocation  on  appeal  and  on  citation.  An 
appeal  suspends  the  grant,  and  upon  reversal  it  is  as  if  it  had  never 
been;  and  hence,  upon  appeal  and  reversal,  the  intermediate  acts  of 
the  administrator  are  invalid.  The  object  of  the  citation  is  different; 
it  is  to  countermand  or  revoke  the  former  letters. 

In  this  case,  the  revocation  partook  somewhat  of  the  character  of 
a  citation.  The  first  administrator  had  been  appointed  for  ten  months, 
and  upon  discovery  of  the  will  presented  his  petition  for  letters  with 
the  will  annexed.  The  court  then  revoked  the  administration  and  ap- 
pointed appellant. 

The  principles  of  law  adverted  to,  as  laid  down  in  the  books,  cannot 
be  strictly  applicable  to  this  case.  The  executors  had  renounced  before 
the  grant  of  administration,  and  the  test  that  the  grant  must  be  in 
derogation  of  the  right  of  an  executor  did  not  exist. 

Even  if  it  were  the  rule  of  the  common  law  that  letters  of  adminis- 
tration were  void  where  a  will  was  in  existence,  we  do  not  think,  in 
view  of  our  statute,  that  the  rule  obtains  in  this  state. 

The  chapter  of  the  statute  entitled  "Wills"  provides,  in  the  condi- 
tion of  the  bond  required  to  be  given  by  each  administrator,  that  if  a 
will  should  afterwards  appear  and  be  proved  in  court,  and  letters  tes- 
tamentary be  granted  thereon,  the  administrator  shall  deliver  up  the 
letters  of  administration.  It  is  enacted  by  section  71,  as  follows:  "If, 
at  any  time  after  letters  of  administration  have  been  granted,  a  will 
of  the  deceased  shall  be  produced  and  probate  thereof  granted  accord- 
ing to  law,  such  letters  of  administration  shall  be  revoked  and  re- 
pealed, and  letters  testamentary,  or  of  administration,  with  the  will 
annexed,  shall  be  granted  in  the  same  manner  as  if  the  former  letters 
had  not  been  obtained."  Section  72  provides  for  the  repeal  and  revo- 
cation of  letters  granted  upon  a  will,  where  the  latter  has  been  an- 
nulled by  due  course  of  law.  Subsequent  sections  confer  the  power 
to  revoke  and  repeal  letters  for  numerous  causes. 

It  would,  therefore,  seem  that  the  legislature  had  provided  for  the 
case  at  bar.  The  power  to  repeal,  implies  the  power  to  make,  a  law. 
The  revocation  of  an  order  or  decree  must  bd  the  act  of  an  authority 


Ch.    1)  GRANT    AND    REVOCATION.  543 

which  has  the  power  to  publish  it.  The  power  to  revoke  and  repeal 
letters  of  administration  upon  the  production  and  probate  of  the  will, 
necessarily  presupposes  the  power  to  grant  the  administration. 

Chancellor  Kent  (3  Com.  413)  says:  "It  is  the  received  doctrine, 
that  all  sales  made  in  good  faith,  and  all  lawful  acts  done,  either  by 
administrators  before  notice  of  a  will,  or  by  executors  or  administra- 
tors who  may  be  removed  or  superseded,  or  become  incapable,  shall 
remain  valid,  and  not  be  impeached  on  any  will  appearing,  or  by  any 
subsequent  revocation." 

In  Wight  v.  Wallbaum,  39  111.  554,  this  court  held,  that  any  mistake 
in  the  grant  of  letters  of  administration  did  not  make  them  void ;  that, 
whether  a  will  was  properly  proved  or  not,  could  not  affect  the  validity 
of  the  letters  or  a  sale  of  property  made  by  the  administrator;  and 
that,  where  jurisdiction  existed  of  the  subject-matter  and  of  the  par- 
ties, the  judgment  must  be  conclusive,  except  in  a  direct  proceeding 
for  its  reversal. 

This  is  not  a  direct  proceeding  for  the  reversal  of  the  grant.  The 
question  as  to  the  validity  of  the  first  letters  arises  collaterally.  In  this 
case,  it  is  as  necessary  to  hold  the  grant  voidable  only,  for  the  protec- 
tion of  creditors,  and  to  make  the  bar  of  the  statute  effectual,  as  if 
third  parties  had  acquired  rights  from  a  sale  of  property,  or  other 
acts  of  the  administrator.  If  the  first  grant  was  void,  the  creditor 
who  presented  his  claim  within  two  years  will  receive  no  reward  for 
his  vigilance,  for  the  assets  must  be  shared  with  creditors  who  have 
been  less  diligent. 

The  county  court  had  cognizance  of  the  subject-matter,  the  proper 
application  was  made,  and  the  judgment  of  the  court  was  properly 
exercised.  The  grant  of  administration  was,  then,  made  by  a. court 
of  competent  jurisdiction. 

The  judgment  was  for  a  legal  purpose,  to  reach  the  property  of  the 
deceased  for  the  satisfaction  of  his  debts,  and,  under  the  facts,  was 
not  in  derogation  of  the  rights  of  the  executors. 

The  claim  of  appellees  should  have  been  allowed  to  be  paid  out  of 
any  estate  to  be  discovered  subsequent  to  the  bar  of  the  statute,  which 
commenced  to  run  from  the  date  of  the  first  grant  of  letters. 

The  judgment  is  reversed  and  the  cause  remanded.  Judgment  re- 
versed.^'' 

35  See  Barkaloo's  Adm'r  v.  Emerick,  18  Ohio,  208  (1S49) ;  Kittridge  v.  Fol- 
som,  8  N.  H.  98  (1835);  Franklin  v.  Franklin,  91  Teun.  119,  IS  S.  W.  61 
(1892)  •  Zeigler  v.  Storey,  220  Pa.  471.  69  Atl.  894,  17  L.  R.  A.  (N.  S.)  878  (1908). 

In  Perkins  v.  Owens,  123  Wis.  238,  243,  101  N.  W.  415,  416  (1904),  it  is 
said:  "If  letters  of  administration  be  issued  on  the  mistaken  idea  that  no 
will  was  left,  and  a  will  be  afterwards  found  and  proven,  the  letters  of 
administration  will  of  course  be  revoked,  and  all  acts  of  the  count3'  court. 
Inconsistent  with  the  due  administration  of  the  estate  under  the  terms  of 
the  will,  will  doubtless  be  revoked  upon  motion;  but  such  action  w\ll  not 
be  based  on  the  idea  that  all  such  acts  have  been  void  for  lack  of  Jurisdic- 
tion, but  rather  on  the  ground  that  they  have  been  erroneous.  The  county 
court  has  administered  on  the  estate  in  the  wrong  way;  it  has  not  admin- 


644  PROBATE    AND    ADMINISTRATION.  (Part    3 

Istered  an  estate  over  which  It  has  no  jurisdiction."  See,  also,  21  L.  R.  A. 
146,  note;  17  L.  R.  A.  (N.  S.)  878,  note.  In  Crocker  v.  Crocker,  198  Mass. 
401,  410,  84  N.  E.  476  (1908),  In  suggesting  a  bill  to  review  as  the  proper 
course  for  an  aggrieved  party  to  pursue  where  a  will  has  been  rejected  and 
administration  granted  because  a  juror  was  bribed  to  give  his  verdict 
against  the  will,  the  court  said :  "So  far  as  the  administrators  have  acted 
In  the  settlement  of  the  estate  under  orders  and  decrees  of  that  [the  probate] 
court,  they  will  find  in  them  sufficient  protection.  Pierce  v.  Prescott,  128 
Mass.  140.  Harris  v.  Starkey,  176  Mass.  145  [57  N.  B.  698.  79  Am.  St.  Rep. 
822].  If  the  facts  here  alleged  are  proved  in  that  court,  they  will  present  a 
question  similar  to  that  which  would  arise  if  a  v/ill  were  discovered  after 
the  appointment  of  an  administrator." 

But  in  Ellis  v.  Ellis,  [1905]  1  Ch.  613,  It  was  held  that  an  acknowledgment 
by  payment  made  by  an  administrator  would  not  raise  the  bar  of  the  statute 
of  limitations,  where  there  really  was  a  will  naming  an  executor,  and  where 
on  the  probate  of  that  will  the  grant  of  letters  of  administration  was  revoked- 
The  opiufon  of  the  court  was  on  the  gi'ouud  that  the  grant  of  letters  of  admin- 
istration was  "wholly  void."  See,  also,  Woolley  v.  Clark,  5  B.  &  Aid.  744 
(1822). 

In  Oraster  v.  Thomas,  [1909]  2  Ch.  348,  it  was  held  imder  the  Indian  Suc- 
cession Act,  that  the  grant  of  letters  of  administration  in  India  on  the  estate 
of  a  I'esident  of  England  who  died  owning  assets  in  India  was  not  void  ab 
initio,  despite  the  fact  that  he  left  a  will  apix)inting  executors,  and,  accord- 
ingly, a  sale  of  shares  of  stock  by  the  administrator  in  India  to  a  bona  fide 
purchaser  was  valid.  The  court  distinguished  the  case  from  Ellis  v.  Ellis, 
supra,  on  the  ground  that  in  Ellis  v.  Ellis,  if  the  court  had  known  of  the 
will,  the  appointment  of  an  administrator  would  have  been  Improper,  whereas 
in  Craster  v.  Thomas,  if  the  Indian  court  had  known  of  the  will,  still  as  the 
will  named  executors  who  were  not  residents  of  India,  that  court's  proper 
course  would  have  been  to  appoint  an  administrator  with  the  vrlll  annexed. 
That  an  administrator  was  appointed  without  making  him  one  with  the  will 
annexed  was  deemed  immaterial,  since  it  was  proper  to  appoint  some  kind  of 
an  administrator,  and  since  even  an  administrator  with  the  will  annexed 
would  have  taken  title,  not  by  virtue  of  the  will,  but  by  virtue  of  the  grant 
of  the  court  It  was  also  held  that  the  true  construction  of  the  Indian  Succes- 
sion Act  made  the  grant  of  letters  in  India  void  only  from  the  date  of  the 
order  of  revocation. 


Ch.    2)  TITLE   AND   POWERS   OF   EXECUTORa.  645 


CHAPTER  11 

THE  TITLE  AND  POWERS  OF  EXECUTORS  AND 
ADMINISTRATORS 


SECTION  1.— WHAT  INTERESTS  BELONG  TO  EXECUTORS 
AND  TO  ADMINISTRATORS 


HOVEY  V.  PAGE. 

(Supreme  Ctourt  of  Maine,  1867.     55"  Me.  142.) 

Danforth,  J.^  This  action  was  commenced  by  the  plaintiff's  in- 
testate in  her  lifetime,  and  is  for  an  alleged  breach  of  promise  of  mar- 
riage. That  such  an  action  does  not  survive  at  common  law,  without 
an  allegation  of  special  damage,  is  well  settled.  Stebbins  v.  Palmer,  1 
Pick.  (Mass.)  71,  11  Am.  Dec.  146;  Smith  v.  Sherman,  4  Cush. 
(Mass.)  408.  Nor  does  it  come  within  the  provisions  of  Rev.  St.  c. 
87,  §  8.  In  this  case,  no  special  damage  is  alleged,  but  there  is  an 
offer  to  prove,  for  which  the  same  effect  is  claimed,  "that,  after  such 
alleged  promise,  the  deceased  had  a  child  born  to  her  out  of  wedlock, 
now  living,  and  that  the  defendant  is  the  father  of  the  child."  It  is 
not  necessary  now  to  decide  whether  such  testimony,  with  or  without 
an  amendment  of  the  declaration,  would  be  admissible ;  for  we  are  of 
the  opinion  that,  if  the  facts  stated  in  the  offer  were  proved,  there 
would  not  be  such  special  damage  as  to  authorize  the  prosecution  of 
the  suit.  In  order  to  do  so,  it  must  be  such  as  to  affect  the  property 
and  not  such  as  is  purely  personal.  The  distinction  between  actions 
which  do  not  survive,  and  those  which  do,  is  that  the  former  are  to 
recover  damages  to  the  person  only  and  the  latter  damages  to  the 
property.  If  any  others  survive  it  is  by  virtue  of  statutory  provi- 
sions. Hence,  the  allegation  of  special  damage  which  would  cause 
the  action  to  survive,  must  be  of  damage  to  the  property,  and  such  as 
would  be  sufficient  of  itself  to  sustain  a  suit. 

That  such  was  the  understanding  of  the  court  in  Stebbins  v.  Palmer 
is  evident  from  the  last  sentence  in  the  opinion,  by  which  it  is  left  in 
doubt  whether,  in  case  the  action  survives,  the  plaintiff  would  recover 
any  more  than  the  damage  to  the  property.^     In  Smith  v.  Sherman  it 

1  The  statement  of  facts  is  omitted. 

2  StebMus  V.  Palmer,  is  reported  post,  at  page  592. 

Cost. Wills— 35 


546  PROBATE    AND    ADMINISTRATION.  (Part   3 

is  held  "that  it  must  be  some  damage  of  such  a  character  that  it  might 
be  given  in  evidence,  to  aggravate  the  damage  in  one  action,  or  be  it- 
self the  substantive  cause  of  action,  as  in  trespass  quare  clausum  and 
conveying  away  the  plaintiff's  goods."  As  a  matter  of  principle,  it  is 
evident  that  the  effect  of  proof  offered  for  the  purpose  of  aggravating 
the  damage,  or  to  sustain  special  damage,  could  not  be  greater  than 
if  offered  in  a  separate  action,  for  that  which  is  merely  incidental  to 
the  principal  thing  must  fall  when  the  principal  falls,  and  that  which 
would  not  of  itself  sustain  an  action  would  not  cause  one  to  survive 
which  would  otherwise  abate.  Now  the  testimony  offered  and  re- 
lied upon  in  this  case,  if  admissible,  would  increase  the  damages  only 
on  the  ground  of  injury  to  the  character  and  not  to  the  estate;  nor 
would  it  of  itself  sustain  an  action,  for,  if  seduction  is  relied  upon, 
the  plaintiff's  intestate,  if  living,  would  have  no  legal  cause  of  com- 
plaint. Paul  V.  Frazier,  3  Mass.  71,  3  Am.  Dec.  95.  If  the  expense 
of  supporting  the  child  is  relied  upon,  the  only  remedy  is  that  provided 
by  statute.  2  Kent's  Com.  215. 
Plaintiff  nonsuit.^ 

3  "The  general  rule  of  law  is.  'Actio  personalis  moritur  cum  persona' ;  under 
which  rule  are  included  all  actions  for  injuries  merely  personal.  Executors 
and  administrators  are  the  representatives  of  the  temporal  property,  that  is, 
the  debts  and  goods  of  the  deceased,  but  not  of  their  wrongs,  except  where 
those  wrongs  operate  to  the  temporal  injury  of  their  personal  estate.  But  in 
that  case  the  special  damage  ought  to  be  stated  on  the  record ;  otherwise  the 
court  cannot  intend  it.  If  this  action  be  maintainable,  then  every  action 
founded  on  an  implied  promise  to  a  testator,  where  the  damage  subsists  in  the 
previous  personal  suffering  of  the  testator,  would  be  also  maintainable  by  the 
executor  or  administrator.  All  injuries  affecting  the  life  or  health  of  the  de- 
ceased; all  such  as  arise  out  of  the  unskilfulness  of  medical  practitioners;  the 
imprisonment  of  the  party  brought  on  by  the  negligence  of  his  attorney ;  all 
these  would  be  breaches  of  the  implied  promise  by  the  persons  employed  to  ex- 
hibit a  proper  portion  of  skill  and  attention.  We  are  not  aware,  however,  of 
any  attempt  on  the  part  of  the  executor  or  administrator  to  maintain  an  ac- 
tion in  any  such  case.  Where  the  damage  done  to  the  personal  estate  can  be 
stated  on  the  record,  that  involves  a  different  question.  Although  man-iage 
may  be  regarded  as  a  temporal  advantage  to  the  party  as  far  as  respects  per- 
sonal comfort,  still  it  cannot  be  considered  in  this  case  as  an  increase  of  the 
Individual  transmissible  personal  estate,  but  would  operate  rather  as  an  ex- 
tinction of  it ;  though  that  circumstance  might  have  been  compensated  by 
other  advantages.  Loss  of  marriage  may,  under  circumstances,  occasion  a 
strict  pecuniary  loss  to  a  woman,  but  it  does  not  necessarily  do  so ;  and  unless 
it  be  expressly  stated  on  the  record  by  allegation  the  court  cannot  Intend  it. 
On  the  gi'ound,  therefore,  that  the  present  allegation  imports  only  a  personal 
injury,  to  which  the  administrator  is  not  by  law,  nor  is  he  in  fact  shown  to  be, 
privy,  we  are  of  opinion  that,  in  the  absence  of  any  authorities,  this  adminis- 
trator cannot  maintain  this  action."  Lord  Ellenborough,  G.  J.,  In  Chamberlain 
V.  Williamson,  2  M.  &  S.  408,  4  (1814). 


Ch.    2)  TITLE   AND   POWERS   OF   EXECUTORS.  547 

RAYMOND  V.  FITCH. 

(Court  of  Exchequer,  1835.     2  C,  M.  &  R.  588.) 

Lord  AbingER,  C.  B.*  The  demurrer  to  the  first  breach  gives 
rise  to  this  question,  whether  an  executor  can  sue  for  the  breach  of 
this  covenant,  not  to  fell,  stub  up,  head,  lop  or  top,  timber  trees  ex- 
cepted out  of  the  demise,  such  breach  having  been  committed  in  the 
lifetime  of  the  testator;  and  no  part  of  the  timber,  loppings,  or  top- 
pings, appearing  to  have  been  removed  by  the  defendant.  This  ques- 
tion was  argued  in  the  latter  part  of  the  last  term,  before  my  Brothers 
Parke,  Bolland,  Gurney,  and  myself,  and  stood  over,  that  we 
might  more  attentively  consider  how  far  the  modern  decisions,  re- 
ferred to  on  the  argument,  had  overruled  or  qualified  the  old  authori- 
ties. Those  authorities  are  uniform,  that  the  present  representative 
may  sue,  not  only  for  all  debts  due  to  the  deceased,  by  specialty  or 
otherwise,  but  for  all  covenants,  and  indeed  all  contracts  with  the  tes- 
tator, broken  in  his  lifetime;  and  the  reason  appears  to  be,  that  these 
are  choses  in  action,  and  are  parcel  of  the  personal  estate,  in  respect 
of  which  the  executor  or  administrator  represents  the  person  of  the 
testator,  and  is  in  law  the  testator's  assignee.  And  this  right  does  not 
depend  on  the  equity  of  the  statute  4  Edw.  Ill,  c.  7,°  but  is  a  common- 
law  right,  as  much  as  the  right  to  sue  on  a  bond  or  specialty  for  a  sum 
certain  due  in  the  testator's  lifetime.  The  maxim,  that  "Actio  per- 
sonalis moritur  cum  persona,"  is  not  applied  in  the  old  authorities  to 
causes  of  actions  on  contracts,  but  to  those  in  tort,  which  are  founded 
on  malfeasance  or  misfeasance  to  the  person  or  property  of  another, 
which  latter  are  annexed  to  the  person,  and  die  with  the  person,  ex- 
cept where  the  remedy  is  given  to  the  personal  representative  by  the 
statute  law.     *     *     * 

The  rule  that  the  executor  may  sue  upon  every  covenant  with 
his  testator  broken  in  his  lifetime,  has  been  directly  qualified  by 
the  decisions  in  the  two  cases  of  Kingdon  v.  Nottle,  1  M.  &  Selw. 
355,  and  4  M.  &  Selw.  53,  followed  by  that  of  King  v.  Jones,  5 
Taunt.  518,  1  Marshall,  107,  in  which  cases  it  was  held,  that,  where 
there  are  covenants  real,  that  is,  which  run  with  the  land  and  de- 

*  The  statement  of  facts  and  a  part  of  the  opinion  are  omitted. 

B  That  statute,  passed  in  1330,  was:  "Item,  Whereas  in  times  past  executors 
have  not  had  actions  for  a  trespass  done  to  their  testators,  as  of  the  goods 
and  chattels  of  the  same  testators  carried  away  in  their  life,  and  so  such  tres- 
passes have  hitherto  remained  unpunished ;  (2)  it  is  enacted,  that  the  execu- 
tors in  such  cases  shall  have  an  action  against  the  trespassers,  and  recover 
their  damages  in  like  manner,  as  they,  whose  executors  they  be,  should  have 
had  if  they  were  in  life."  While  the  statute  gave  executors  an  action,  "the 
equity  of  the  statute"  was  held,  in  Smith  v.  Colgay,  Cro.  Eliz.  384  (l.~,95),  to 
enable  an  administrator  to  maintain  trespass  de  bonis  asportatis  for  the  tak- 
ing of  the  chattels  of  the  intestate  during  the  hitter's  life.  For  a  considera- 
tion, historically,  of  the  doctrine  of  the  equity  of  a  statute,  see  58  Am.  Law 
Reg.  (O.  S.)  76. 


548  PROBATE    AND    ADMINISTRATION.  (Part    3 

scend  to  the  heir,  though  there  may  have  been  a  formal  breach  in 
the  ancestor's  hfetime,  yet  if  the  substantial  damage  has  taken  place 
since  his  death,  the  real  representative,  and  not  the  personal,  is  the 
proper  plaintiff.  These  cases  go  no  farther,  and  they  do  not  apply 
to  the  present ;  for  there  is  no  doubt  but  that  the  covenant  in  question 
is  purely  collateral,  and  does  not  run  with  the  land;  for  the  trees 
being  excepted  from  the  demise,  the  covenant  not  to  fell  them  is  the 
same  as  if  there  had  been  a  covenant  not  to  cut  down  trees  growing  up- 
on an  adjoining  estate  of  the  lessor.  It  is  a  security  by  specialty  given 
by  the  lessee  to  the  lessor,  not  to  commit  such  a  trespass  during  the 
lease,  which  may  continue  beyond  the  lessor's  life.  For  the  breach  of 
such  a  covenant  after  the  death  of  the  covenantee,  the  heir  or  devisee 
of  the  land  on  which  the  trees  grow  could  not  sue ;  the  executor  would 
be  the  proper  party,  as  the  covenant  is  collateral,  and  is  intended  not 
to  be  limited  by  the  life  of  the  covenantee;  and  if  he  could  not  sue,  no 
one  could.  It  is  equally  clear  that  the  heir  or  devisee  could  not  sue 
for  a  breach  of  the  covenant  in  the  time  of  the  ancestor  or  devisor,  and 
the  executor  therefore  must  sue,  or  all  remedy  is  lost.  These  deci- 
sions, therefore,  do  not  affect  the  present  case.  The  old  authorities, 
with  respect  to  the  right  of  the  personal  representative  to  sue  on  all 
contracts  made  with  the  deceased,  have  also  been  qualified  by  the  mod- 
ern decision  of  Chamberlain  v.  Williamson,  2  M.  &  Selw.  408,  in 
which  it  was  held,  that  the  administrator  of  a  woman  could  not  sue  for 
a  breach  of  contract  to  marry  the  intestate,  the  declaration  not  stating 
any  ground  of  injury  to  the  personal  estate;  and  in  giving  judgment 
Lord  Ellenborough  enumerates  other  instances  of  contracts,  the  breach 
of  which  imports  a  damage  only  to  the  person  of  the  deceased,  such 
as  implied  contracts  by  medical  practitioners  to  use  a  proper  portion 
of  skill  and  attention,  which  cases  are  in  substance  actions  for  injuries 
to  the  person,  and  for  which  the  personal  representative  could  not  sue ; 
and  the  argument  on  the  part  of  the  defendant  in  this  case  was,  that 
the  same  limitation  of  the  old  authorities  must  be  applied  to  all  con- 
tracts except  such  as  directly  relate  to  the  personal  estate,  and  the  per- 
formance of  which  would  necessarily  be  a  benefit,  and  the  breach  a 
damage,  to  the  personal  estate  of  the  testator,  whether  such  contracts 
are  under  seal  or  not ;  and  that  upon  such  contracts  the  executor  could 
not  sue  without  alleging  a  special  damage  to  the  personal  estate. 
The  case  certainly  does  not  go  that  length ;  and  we  think  that  such  an 
extension  of  the  doctrine  laid  down  in  it  is  not  warranted  by  law,  and 
that  it  cannot  be  extended  to  a  contract  broken  in  the  lifetime  of  the 
deceased,  the  benefit  of  which,  if  it  were  yet  unbroken,  would  pass 
to  the  executor  as  part  of  the  personal  estate;  at  all  events,  not  to 
such  a  contract  under  seal. 

The  present  case  is  one  of  that  description — it  is  a  case  more  favor- 
able to  the  executors  than  those  of  Morley  v.  Polhill  [2  Ventr.  56,  3 
Salk.  109,  pi.  10],  Smith  v.  Simonds  [Comberbach,  64],  and  Lucy 
V.  Levington  [2  Lev.  26,  1  Ventr.  176],  in  which  the  covenant  did  run 


Ch.    2)  TITLE  AND   POWERS  OF   EXECUTORS.  549 

with  the  land;  and  if  the  last  case  [where  the  executor  recovered  for 
a  breach  in  his  testator's  life  of  a  covenant  for  quiet  enjoyment]  is 
to  be  considered  as  having  been  decided,  as  was  suggested  in  the  argu- 
ment before  us,  on  the  ground  that  the  loss  of  rents  and  profits  by  an 
eviction  of  the  testator  was  an  injury  to  the  personal  estate  (though 
such  a  ground  is  not  intimated  in  either  report),  it  is  difficult  to  say 
that  the  loss  of  the  shade  and  casual  profits  of  trees  is  not  equally  so. 
We  therefore  think  that  our  judgment  must  be  for  the  plaintiffs. 
Judgment  for  the  plaintiffs. 


BRADSHAW  v.  LANCASHIRE  &  Y.   RY.   CO. 
(Ck)urt  of  Common  Pleas,  1875.     L.  R.  10  G.  P.  189.) 

At  the  trial,  before  Denman,  J.,  at  the  last  Manchester  spring  as- 
sizes, the  facts  were  as  follows:  The  female  plaintiff  was  the  execu- 
trix of  the  testator,  and  he,  while  traveling  on  the  defendant's  rail- 
way, had  been  injured  by  a  railway  accident.  He  ultimately  died 
from  the  injuries  received,  and  it  was  not  disputed  that  he  had  in- 
curred expenses  for  medical  attendance  amounting  to  £40,  and  that 
the  loss  occasioned  to  his  estate  in  respect  of  his  being  unable  to  at- 
tend to  business  previous  to  his  death  was  £160. 

It  was  contended,  however,  on  the  part  of  the  defendants,  that  the 
maxim  "Actio  personalis  moritur  cum  persona"  applied,  and  that  the 
action  was  not  maintainable ;  and,  secondly,  that  the  damages  for  loss 
of  business  were  too  remote.  The  verdict  was  entered  for  the  plain- 
tifiFs  for  £200,  leave  being  reserved  to  the  defendants  to  enter  a  verdict 
for  themselves  or  to  reduce  the  damages  on  the  above  grounds. 

A  rule  nisi  had  been  obtained  accordingly. 

Grove,  J.^  I  am  of  opinion  that  this  rule  should  be  discharged. 
The  action  is  brought  by  the  executrix  of  a  person  whose  death 
was  caused  by  a  railway  accident,  in  respect  of  damages  occa- 
sioned to  the  testator's  estate.  It  is  to  be  taken  that  the  estate  was 
damaged,  not  consequentially  upon  the  testator's  death,  but  by  his  in- 
ability to  attend  to  his  business  in  his  lifetime,  the  direct  and  natural 
result  of  the  injury  he  suffered.  It  is  no  doubt  singular  that  up  to 
the  case  of  Potter  v.  Metropolitan  District  Ry.  Co.,  30  L.  T.  (N.  S.) 
765,  no  action  of  this  kind  appears  to  have  ever  been  brought,  a  cir- 
cumstance which  has  been  sometimes  relied  on  as  an  argument 
against  sanctioning  a  new  form  of  action.''     It  may,  however,  be  that 

6  The  statement  of  the  pleadings  and  parts  of  the  opinions  relating  to  dam- 
ages are  omitted. 

7  In  Potter  v.  Metropolitan  District  Railway  Co.,  30  L.  T.  (N.  S.)  765  (1874), 
the  plaintiff  as  the  executrix  of  her  late  husband  brought  an  actiou  to  recover 
compensation  for  the  loss  sustained  to  his  estate,  because  the  defendant  did 
not  safely  carry  the  plaintiff  after  it  had  received  her  as  a  passenger,  and  in 


550  PROBATE   AND    ADMINISTRATION.        .  (Part    3 

this  is  accounted  for  by  the  comparative  infrequency  of  accidents  of 
this  sort  in  former  times,  and  the  fact  that  until  Lord  Campbell's  act 
the  right  to  damages  for  the  personal  injury,  as  compared  with  which 
the  damages  to  the  estate  would  generally  be  a  small  matter,  was  lost 
by  the  death  of  the  party  injured.  The  same  argument  might  have 
been  applied  to  the  action  in  Potter  v.  Metropolitan  District  Ry.  Co., 
up  to  the  decision  of  which  case  no  action  of  the  kind  had  ever  been 
heard  of,  so  far  as  I  know,  if  we  except  the  case  put  by  way  of  illus- 
tration by  Richardson,  J.,  in  Knights  v.  Quarles,  2  B.  &  B.  102. 

The  Court  of  Exchequer  Chamber,  nevertheless,  held  in  that  case 
that  the  action  would  lie,  and  by  their  decision  we  are  bound,  unless 
the  present  case  is  so  far  distinguishable  as  to  render  the  same  prin- 
ciple inapplicable.  I  am  of  opinion  that  it  is  not,  and  there  is  a  suffi- 
cient ground  of  action  here.  The  ground  of  action  in  both  cases  is 
that  there  has  been  a  breach  of  a  contract  made  with  the  testator  dur- 
ing his  lifetime,  whereby  in  his  lifetime  his  estate  was  injured  by  his 
having  to  pay  medical  and  other  expenses,  and  injury  to  his  business, 
the  direct  and  immediate  consequence  of  the  accident. 

Does  the  fact  that,  in  this  case,  besides  the  injury  to  the  estate,  the 
testator's  death  has  likewise  resulted  from  the  breach  of  contract, 
make  any  difference,  or  does  the  fact,  that  provision  has  been  made  in 
such  cases  for  compensation  in  respect  of  the  death  to  certain  relatives 
by  Lord  Campbell's  act,  take  away  any  right  of  action  that  the  execu- 
trix would  have  had  but  for  that  act?  It  does  not  seem  to  me  that 
the  act  has  that  effect,  either  expressly  or  by  necessary  implication. 
The  intention  of  the  act  was  to  give  the  personal  representative  a 
right  to  recover  compensation  as  a  trustee  for  children  or  other  rela- 
tives left  in  a  worse  pecuniary  position  by  reason  of  the  injured  per- 
son's death,  not  to  affect  any  existing  right  belonging  to  the  personal 
estate  in  general.  There  is  no  reason  why  the  statute  should  interfere 
with  any  right  of  action  an  executor  would  have  had  at  common  law. 
In  the  case  of  such  right  of  action  he  sues  as  legal  owner  of  the  gen- 
eral personal  estate  v^^hich  has  descended  to  him  in  course  of  law ;  un- 
der the  act  he  sues  as  trustee  in  respect  of  a  different  right  altogether 
on  behalf  of  particular  persons  designated  in  the  act.  Another  argu- 
ment for  the  defendants  was,  that  inasmuch  as  the  remedy  for  the  per- 
sonal injury  died  with  the  person,  the  damages  to  the  estate,  being 
consequential  on  the  personal  injury,  died  also.  I  do  not  at  all  see 
that  that  follows   as  a   necessary  or  logical  consequence.     The  two 

consequence  of  the  injuries  suffered  slie  was  unable  to  assist  lier  liushand  in 
his  lousiness,  and  he  incurred  expenses  for  her  medical  and  other  attendance. 
A  demurrer  to  the  declaration  was  overruled,  on  the  ground  that  "here  there 
has  been  a  breach  of  contract  which  has  caused  a  loss,  which  has  fallen  upon 
the  personal  estate."  That  the  ri,;,'ht  of  a  husband  to  conseiiuential  damaj^es 
to  him  from  defendant's  actionable  injury  of  the  wife  is  not  barred  by  the 
fact  that  she  dies  as  a  result  of  the  injury  and  that  a  recovery  for  her  death 
is  had  by  the  administrator  for  the  statutory  beneficiaries  is  held  in  Mageau 
V.  Great  Northern  Ily.  Co.,  103  INlinn.  2'JO,  115  N.  W.  6.51,  946,  15  L.  R.  A, 
(N.  S.)  511  (190S).     See,  14  Am.  &  Eng.  Ann.  Cas.  554,  note. 


Ch.   2)  TITLE  AND   POWERS  OF   EXECUTORS.  ^ol 

sorts  of  damage  are  separable:  the  one  is  pecuniary  loss  to  the  estate 
immediately  and  naturally  arising  out  of  the  accident;  the  other  is 
personal  to  the  party  injured,  and  as  such  dies  with  the  person.  I  do 
not  see  that  there  is  any  valid  distinction  between  this  case  and  that  of 
Potter  V.  Metropolitan  District  Ry.  Co.,  or  why  the  damage  to  the  es- 
tate, that  would  clearly  be  recoverable  if  the  injured  party  lived, 
should  be  the  less  recoverable  because  of  his  death.-  For  these  rea- 
sons, I  am  of  opinion  that  the  action  is  maintainable.     *     *     * 

Den  MAN,  J.  I  am  of  the  same  opinion.  Whatever  may  be  the 
usual  form  of  action  in  such  cases,  it  is  quite  clear  that  the  declara-  . 
tion  in  this  case  was  framed  in  contract.  The  damage  alleged  was 
damage  to  the  estate  of  the  testator,  and  at  the  trial  two  heads  of  dam- 
age were  shown:  viz.,  il60,  damage  in  respect  of  the  business,  which 
it  was  agreed  had  suffered  to  that  amount,  and  £40,  medical  and  other 
expenses.  I  am  of  opinion  that  the  plaintiffs  are  entitled  to  retain  the 
verdict  for  the  full  amount  of  £200. 

The  first  question  was,  whether  the  action  can  be  maintained  at  all. 
The  action  is  for  a  breach  of  contract  occurring  in  the  lifetime  of  the 
testator,  but  which  ultimately  caused  his  death.  And  it  was  urged 
that  the  case  fell  within  Lord  Campbell's  act,  that  the  only  action  that 
could  be  brought  was  under  that  act,  and  that  these  damages  could 
not  be  recovered  as  damages  to  the  estate.  This  appears,  no  doubt, 
to  be  the  first  case  of  similar  damages  being  sued  for  in  an  action  like 
the  present,' but  there  is  considerable  authority  for  holding  as  we  do. 

In  Williams  on  Executors,  vol.  1,  p.  798,  a  work  in  itself  of  great 
authority,  all  the  cases  on  the  subject  are  commented  upon  and  the 
law  is  stated  entirely  in  accordance  with  the  dictum  of  Richardson,  J., 
in  Knights  v.  Quarles.  It  is  distinctly  laid  down  that  an  executor 
may  recover  damages  to  the  personal  estate  arising  out  of  a  contract, 
though  an  action  of  tort  might  have  been  brought  for  the  personal  in- 
jury, resulting  from  the  same  act  of  the  defendant,  before  the  death 
of  the  testator.  The  case  of  Alton  v.  Midland  Ry.  Co.,  19  C.  B.  (N. 
S.)  213;  34  L.  J.  (C.  P.)  292,  is  also  referred  to  in  a  note;  and  it  is 
clear  the  learned  author,  who  was  a  judge  of  this  court,  when  that 
case  was  decided,  looked  upon  the  dictum  of  Willes,  J.,  in  that  case  as 
a  confirmation  of  the  opinion  of  Richardson,  J.,  in  Knights  v.  Quarles. 
He  proceeds,  however,  to  say  that  the  rule  there  laid  down  must  be 
taken  to  be  limited  by  a  qualification  introduced  by  the  modern  deci- 
sion of  Chamberlain  v.  Wilkinson,  2  M.  &  S.  408,  viz.,  that  an  action 
by  the  executor  for  breach  of  contract  will  not  lie  where  the  damage 
is  purely  personal,  and  there  is  no  damage  to  the  estate.  In  that  case 
the  action  was  for  breach  of  promise  of  marriage,  and  the  decision 
turns  distinctly  on  the  ground  that  there  was  no  special  damage  stated 
on  the  record,  and  so  the  executor  could  not  have  an  action  because 
the  only  damages  recoverable  were  purely  personal.  Here,  the  dam- 
ages are  not  personal  in  their  nature,  but  are  damages  to  the  estate, 


552  PROBATE    AND    ADMINISTRATION.  (Part    3 

and  the  case  falls  therefore  within  the  rule  as  laid  down  by  Sir  Ed- 
ward Vaughan  Williams,  and  not  the  exception. 

Ag-ain,  the  case  of  Potter  v.  Metropolitan  District  Ry.  Co.,  though 
rot  exactly  in  point,  is  to  some  extent  an  authority  in  favor  of  the 
view  we  take.  In  one  respect  it  was  a  stronger  case,  for  it  was  doubt- 
ful there  whether  the  declaration  was  in  contract,  whereas  it  clearly 
is  so  here.  There  the  wife  was  the  person  to  whom  the  injury  was 
done,  and  she  sued  as  executrix  to  her  husband  who  had  died,  in  re- 
spect of  the  damage  to  the  personal  estate.  The  case  was  not,  there- 
fore, one  of  personal  injury  ultimately  causing  death,  and  conse- 
quently is  not  on  all  fours  with  the  present.  The  principle,  how- 
ever, of  the  decision  is  quite  consistent  with  our  judgment  in  this  case. 
The  rule  to  enter  a  nonsuit  must  for  these  reasons  be  dis- 
charged.    *     *     * 

Rule  discharged.' 


WYMAN  V.  WYMAN. 

(Court  of  Appeals  of  New  York,  18G3.     26  N.  T.  253.) 

John  R.  Wyman,  the  plaintiff's  intestate,  died  in  January,  1859, 
seised  of  a  hotel,  on  which  he  had  effected  insurance  to  the  amount  of 
$3,000.  The  policies  ran  to  Wyman,  "his  executors,  administrators, 
or  assigns,"  and  contained  this  clause,  "the  interest  of  the  insured  in 
this  policy  is  not  assignable  unless  by  consent  of  this  corporation,  man- 
ifest in  writing,  and  in  case  of  any  transfer  or  termination  of  the  in- 
terest of  the  insured,  either  by  sale  or  otherwise,  without  such  consent, 
this  policy  shall  be  void  and  of  no  effect."  Wyman  died  wholly  in- 
solvent, leaving  a  widow,  the  plaintiff,  who  took  out  letters  of  admin- 
istration, and  two  children,  his  heirs  at  law,  who  were  defendants.  In 
October  succeeding  Wyman's  death  the  insured  property  was  destroyed 
by  fire.  The  insurers  adjusted  the  loss  and  paid  the  amount  to  David 
M.  Prosser,  Esq.,  who  had  been  appointed  guardian  of  the  infant  heirs, 
under  a  stipulation  entered  into  by  all  the  parties  concerned  that  Pros- 

8  See  Kelley  v.  Union  Pac.  Ry.  Co..  16  Colo.  45.5,  27  Pac.  1058  (1891).  But 
see  Holton  v.  Daly,  106  111,  131  (1882).  In  Illinois,  however,  "if  an  injured 
person  dies  from  some  cause  other  than  the  Injury,  the  cause  of  action  for 
damages  to  the  time  of  his  death  survives  under  section  122  [chapter  3,  Hurd's 
Rev.  St.  1908].  Holton  v.  Daly,  supra ;  Savage  v.  Chicago,  Joliet  Ry.  Co.,  238 
111.  .392,  87  N.  E.  377."  Scott,  J.,  in  Devine  v.  Heuly,  241  111.  34,  41,  89  N.  E. 
251,  253  (1909).  See,  also,  McLaughlin  v.  Ilebren  JMfg.  Co.  (C.  C.)  171  Fed.  269 
(1909).  On  concurrent  actions  for  death  and  injury,  see  34  L.  R.  A.  801,  note. 
On  several  actions  for  wrongful  death,  see  34  L.  R.  A.  788,  note;  8  L.  R.  A.  (N. 
S.)  384,  note;  14  L.  R.  A.  (N.  S.)  SUl],  note.  In  Pulling  v.  Great  Eastern  Rail- 
way Co.,  9  Q.  B.  D.  110  (1882),  where  there  was  no  contract  between  the  par- 
ties, but  the  Intestate  was  injured  by  the  negligence  of  the  defendant  and  in- 
curred medical  expenses  before  his  death,  recovery  by  the  administratrix  for 
tnich  expenses  was  refused.  Bradshnvv  v.  Lnncashire  R.  Co.,  supra,  was  dis- 
tinguished from  this  tort  action  on  the  ground  "that  in  that  case  the  action 
was  an  action  of  contract." 


Ch.    2)  TITLE  AND   POWERS  OF  EXECUTORS.  553 

ser  should  hold  the  money  subject  to  the  direction  of  the  court,  to  be 
paid  to  the  parties  to  whom  it  might  be  adjudged  to  belong,  the  heirs, 
the  administratrix  or  certain  creditors,  who,  before  the  intestate's 
death,  had  recovered  judgment  against  him,  which  was  a  lien  on  the 
insured  property  for  an  amount  exceeding  its  value.  Prosser  insisted 
upon  his  right  to  hold  the  money  for  the  heirs,  and  the  action  was  in 
the  nature  of  a  bill  of  interpleader  to  try  the  right  of  the  several  par- 
ties. The  decision  of  the  Supreme  Court,  at  General  Term  in  the 
Seventh  District,  was  that  the  plaintiff,  as  administratrix  of  Wyman, 
was  entitled  to  the  money,  and  not  the  heirs  at  law.  From  this  judg- 
ment Prosser,  as  guardian  of  his  wards,  appealed  to  this  court. 

Emott,  J.  The  condition  in  the  policy  which  is  cited  by  the  appel- 
lants refers  to  assignments  or  transfers  of  the  policy  itself  or  of  the 
interest  of  the  assured  therein,  and  not  to  transfers  of  the  title  to  the 
building  insured,  or  the  land  on  which  it  stood,  whether  such  transfers 
are  voluntary  or  by  operation  of  law.  The  clause  is  to  the  effect  that 
the  interest  of  the  assured  in  this  policy  is  not  assignable ;  and  it  is 
a  transfer  or  termination  of  the  interest  of  the  assured  in  the  policy, 
and  not  in  the  premises  insured,  which,  when  made  without  consent, 
is  to  avoid  the  policy  under  this  condition. 

Policies  of  insurance  against  fire,  however,  are  personal  contracts 
with  the  assured.  They  are  agreements  to  indemnify  him  against  loss, 
and  not  guarantees  of  the  immunity  of  the  property  insured.  Such 
contracts  do  not  attach  to  the  realty,  nor  do  they  pass  as  incident  to  a 
conveyance  or  transfer  of  the  title  to  lands.  In  the  present  instance,  as 
ordinarily  with  us,  in  policies  of  insurance  against  fire,  the  contract  is 
made  with  the  assured,  "his  executors,  administrators,  and  assigns.". 
Both  by  force  of  these  words,  and  from  the  nature  of  the  contract  it- 
self, the  right  of  action  upon  the  poHcy  at  the  death  of  John  R.  Wy- 
man vested  in  his  personal  representative.  It  is  not  easy  to  see  how 
any  one  but  his  administratrix,  the  present  respondent,  could  have  sus- 
tained actions  on  these  policies  which  had  been  issued  to  John  R.  Wy- 
man, for  any  loss,  whether  it  had  occurred  before  or  after  his  death. 
It  would  have  been  a  sufficient  answer  to  any  such  action  by  the  heirs, 
upon  a  policy  of  insurance,  that  it  was  a  personal  contract  to  which 
they  were  not  parties,  and  that  the  right  of  action  which  it  gave  passed 
upon  the  death  of  the  original  assured  to  his  personal  representative, 
who  not  only  succeeded  to  all  his  mere  rights  of  action,  but  was  spe- 
cifically named  in  this  contract  itself. 

This,  however,  is  not  an  action  to  recover  on  a  policy  for  a  loss ; 
nor  is  the  question  between  the  insurance  companies  and  these  parties, 
or  either  of  them.  The  companies  have  indeed,  as  far  as  it  lay  with 
them,  waived  any  condition  in  the  policies,  or  any  objection  to  the  pay- 
ment of  the  loss.  The  insurance  money  was  paid  to  David  M.  Prosser, 
under  a  stipulation  by  which  he  became  in  effect  a  stakeholder,  and  by 
which  the  ultimate  disposition  of  the  money  is  left  to  the  judgment 
of  the  courts  upon  the  rights  of  the  parties.     The  present  is  an  equi- 


554  PROBATE    AND    ADMINISTRATION.  (Part    3 

table  action  to  ascertain  and  determine  those  rights.  The  plaintiff 
claims  this  money  as  personal  property  and  part  of  the  assets  of  the 
estate  of  John  R.  Wyman,  to  which  she  is  not  only  primarily  but  ab- 
solutely entitled  as  his  administratrix;  while  the  defendants  insist  that 
it  belongs  to  them  as  his  heirs  at  law,  and  the  owners  of  the  real  estate 
upon  which  the  building  stood  which  was  insured  in  the  policies.  It 
results  that  although  we  are  not  required  formally  to  determine  whether 
an  action  could  have  been  sustained  against  the  insurance  company  by 
either  of  these  parties,  yet  the  controversy  between  them  cannot  be 
determined  except  by  ascertaining  their  legal  or  equitable  rights  to 
the  amount  due  by  the  contract  of  insurance. 

I  have  already  intimated  the  difficulties  in  the  way  of  an  action  to 
recover  the  insurance  money  by  the  heirs.  On  the  other  hand,  it  is 
said  by  the  heirs  that  the  administratrix  could  not  have  sustained 
such  an  action,  because  she  had  no  interest  in  the  property  insured. 
It  is  unquestionable  that  the  assured  must  have  an  insurable  interest 
in  the  premises  covered  by  the  insurance  at  the  time  of  the  loss.  But 
in  the  present  case  the  title  and  interest  in  the  lands,  and  with  it  the 
ownership  of  the  building,  passed  to  the  heirs;  yet,  as  we  have  seen, 
the  right  of  action  upon  the  contract  vested  in  the  administratrix. 
These  parties  are  not  strangers  to  each  other,  however,  but  both  of 
them  derive  title  from  the  intestate  by  a  devolution  or  transfer,  which 
is  not  only  not  forbidden  but  is  recognized  by  the  policy.  The  policy 
does  not  avoid  the  contract  upon  the  transfer  of  the  title  to  the  prop- 
erty by  descent  to  the  heir,  and  the  devolution  of  the  right  of  action 
to  the  administratrix,  but  expressly  preserves  the  right  of  action,  and 
continues  and  extends  the  privileges  of  the  agreement  to  the  executors 
and  administrators  of  the  assured.  An  action  may  be  brought  upon 
the  contract  of  insurance  by  the  latter  as  the  successor  of  the  original 
party,  and  as  named  in  the  instrument  itself,  to  recover  damages  for 
the  destruction  oi  injury  of  the  interest  of  the  former  in  the  property 
insured.  Thus  the  contract  of  insurance  by  the  death  of  John  R.  Wy- 
man became  by  its  terms  a  contract  with  his  administratrix  for  the 
protection  of  the  interest  of  his  heirs.  So  that  the  right  of  action 
became  vested  in  one  person,  while  the  interest  in  the  property  insured, 
which  was  requisite  to  sustain  the  action,  belonged  to  another.  The 
administratrix  would  thus  have  sustained  her  action  upon  the  policy 
as  a  person  with  whom  a  contract  is  made  for  the  benefit  of  another. 
She  would  have  been  regarded  as  a  party  to  whom,  as  a  trustee  of 
an  express  trust,  the  right  to  sue  in  her  own  name  is  preserved  un- 
der the  Code,  §  118.  The  case  would  fall  within  the  decision  of  Con- 
siderant  v.  Brisbane,  22  N.  Y.  389.  See  Freeman  v.  Fulton  Fire  In- 
surance Company,  14  Abb.  Prac.  404. 

But  it  is  difficult  to  reconcile  the  claim  of  the  respondent  to  hold  this 
irsurance  money,  as  part  of  the  personal  assets  of  the  deceased,  with 
this  reasoning.  The  doctrine  contended  for  by  the  appellant's  counsel 
that  not  only  the  right  of  action,  but  the  beneficial  interest  in  the  con- 


Ch.    2)  TITLE  AND  POWERS  OF   EXECUTORS.  555 

tract  with  the  insurers,  passed  to  the  administratrix  at  the  death  of 
John  R.  Wyman,  fails  when  it  is  put  to  this  test.  She  had  no  legal 
estate  and  no  beneficial  interest  in  the  premises.  The  title  to  the  con- 
tract, and  to  a  recovery  upon  it,  was  vested  in  her  by  the  operation  of 
law,  and  not  by  express  assignment  or  transfer.  She  is,  of  course,  a 
trustee  for  creditors  of  the  assets  in  her  hands,  but  not  of  the  lands  of 
the  deceased,  nor  of  a  contract  like  this,  which  is  for  the  indemnity  of 
those  who  have  the  beneficial  interest  in  the  lands.  Upon  the  reason 
of  the  matter  it  is  equally  evident  that  the  beneficial  interest  in  such  a 
contract  of  insurance  belongs  to  the  heir  and  not  the  personal  repre- 
sentative of  the  deceased.  The  heir  is  the  absolute  owner  of  the  prop- 
erty, entitled  to  its  income  and  its  enjoyment,  and  damnified  by  its 
destruction.  He  only  can  bring  an  action  for  any  damage  done  to  it 
after  the  title  has  passed  to  him  from  his  ancestor.  If  the  destruction 
of  this  building  by  fire  had  been  the  result  of  the  malice  or  careless- 
ness of  another,  the  heirs  of  John  R.  Wyman  would  have  had  their 
action  against  such  person  and  recovered  damages  for  the  very  loss 
against  which  this  contract  is  an  indemnity.  They  could  have  de- 
stroyed, removed  or  sold  the  building  at  any  time,  and  neither  for 
such  an  act  nor  for  any  injury  by  a  third  person,  could  the  administra- 
trix have  sued  at  all.  Her  rights  rest  upon  the  contract  of  the  insurers 
exclusively ;  and  that  is  a  contract,  as  I  have  already  said,  not  of  guar- 
anty against  the  destruction  of  the  property,  but  of  indemnity  against 
a.  loss  to  the  person  injured  by  such  destruction.  It  follows  that  it  is 
a  contract  which,  even  if  made  or  continued  with  her,  is,  in  truth,  for 
the  benefit  of  the  parties  to  whom  that  property  belonged.  The  build- 
ing which  was  burned  was  real  estate.  As  such  it  vested  in  the  heirs 
immediately  upon  the  death  of  the  intestate,  and  its  subsequent  injury 
by  fire  could  not  convert  it  into  personal  estate,  so  as  to  divest  the 
right  of  the  heirs  or  give  a  new  direction  or  character  to  the  money 
payable  by  way  of  indemnity  for  their  loss. 

Again,  it  was  a  part  of  the  contract  of  insurance  in  this  case,  as  is 
usual  in  policies  of  insurance  against  fire,  that  upon  the  destruction 
or  injury  of  the  property  the  insurers,  if  they  chose,  might  repair  or 
restore  it  in  specie.  If  they  had  elected  to  take  that  course  the  ex- 
penditure which  would  thus  have  been  made  would,  of  course,  have 
been  entirely  for  the  benefit  of  the  heirs.  The  building  repaired  or 
replaced  would  have  been  theirs,  because  standing  upon  their  lands. 
The  theory  of  the  payment  of  money  in  lieu  of  such  actual  repara- 
tion, is  that  the  party  is  thus  enabled  to  replace  what  has  been  destroyed 
for  himself  instead  of  its  being  done  by  the  insurers.  This  is  very 
plain  in  the  case  of  a  partial  loss  where  there  is  only  an  injury  and  not 
a  destruction  of  the  premises  insured,  but  it  is  equally  so  in  all  cases. 
It  would  be  a  singular  result  if  the  election  of  the  insurers  could  de- 
termine whether  the  heirs  or  the  administratrix  should  take  the  benefits 
of  their  contracts;  whether  they  would  make  compensation  in  money 
to  the  latter,  or  in  kind  to  the  former.    And  it  is  a  strong  implication 


556  PROBATE    AND    ADMINISTRATION.  (Part    3 

from  the  existence  of  such  a  feature  in  the  contract  that  its  benefits 
must,  in  any  event,  and  in  either  form  of  performance,  inure  to  those 
who  would,  in  the  case  of  its  Hteral  performance,  reap  its  fruits.  My 
opinion  is  that  in  such  a  case  as  this  the  executor  or  administrator  is 
a  trustee  for  the  heir  who  alone  has  been  damnified,  who  has  sustained 
the  loss,  and  who  is  entitled  to  the  indemnity. 

It  is  supposed  that  such  a  construction  of  the  contract  and  of  the 
rights  of  the  parties  will  be  in  conflict  with  the  authorities.  It  is 
somewhat  remarkable  that  so  few  cases  can  be  found  in  which  a  ques- 
tion of  such  interest,  and  which  must  frequently  arise,  has  been  con- 
sidered. An  attentive  examination  of  the  few  decisions  to  be  found 
bearing  upon  the  question,  will  show  that  they  do  not  really  contradict 
the  views  which  have  now  been  expressed.  The  difficulties  which  have 
been  found,  and  are  stated  by  text  writers,  grow  out  of  the  character 
of  the  question,  and  the  peculiar  relations  of  the  parties  to  the  subject, 
rather  than  from  judicial  decisions.^    *    ♦    * 

So  far  as  we  have  thus  considered  the  rights  of  these  parties,  and 
so  far  as  their  rights  as  against  each  other  are  concerned,  the  heirs-at- 
law  are  equitably  entitled  to  this  fund.  If  there  had  been  no  other  al- 
legations or  proofs  in  the  case,  than  such  as  we  have  thus  far  adverted 
to,  the  judgment  of  the  Supreme  Court  would  have  been  erroneous 
and  must  have  been  entirely  reversed.  The  claim  of  the  plaintiff  to 
this  fund  as  part  of  the  ordinary  personal  assets  of  the  deceased  can- 
not be  supported. 

But  there  are  other  equities  which  it  is  necessary  to  consider.  It 
was  aUeged  and  proved  that  the  deceased  died  largely  in  debt  and 
probably  insolvent,  and  that  the  heirs  were  irresponsible.  It  was  found 
by  the  judge  who  tried  the  cause  that  there  was  a  judgment  to  a  con- 
siderable amount  against  John  R.  Wyman,  which  was  a  lien  upon  his 
real  estate,  and  was  held  by  persons  not  parties  to  this  suit.  Although 
this  insurance  money  is  to  be  treated  as  proceeds  of  real  estate,  it  is 
nevertheless  subject,  as  is  the  real  estate  itself,  under  our  laws,  to  the 
payment  of  the  debts  of  the  ancestor.  A  court  having  control  of  such 
funds  should  not  allow  them  to  pass  into  the  hands  of  irresponsible 
and  infant  heirs,  leaving  the  creditors  of  the  deceased  to  pursue  them 
by  the  dilatory  remedy  of  a  new  and  distinct  proceeding.  Having 
possession  of  the  fund,  it  is  proper  to  retain  it  for  the  purposes  of  a 
just  administration  among  the  parties  entitled  to  it.  It  is  usual,  in 
cases  where  the  proceeds  of  real  estate  come  into  the  hands  of  the 
court,  and  it  is  shown  that  there  are  debts  which  the  real  estate  was 
liable  to  pay,  or  to  be  sold  in  the  hands  of  the  heir  to  satisfy,  to  order 
Ihe  money  paid  over  to  the  personal  representative,  for  distribution 
so  far  as  may  be  necessary,  holding  him  to  account  for  any  balance 
or  resulting  residue  to  the  heirs. 

»  The  discussion  of  the  cases  is  omitted. 


Ch.   2)  TITLE  AND   POWERS  OF  EXECUTORS.  557 

The  direction  in  the  judgment  appealed  from  in  this  case,  that  the 
money  in  the  hands  of  Mr.  Prosser  should  be  paid  to  the  administra- 
trix, in  order  primarily  to  the  payment  of  the  debts  of  the  deceased, 
need  not  therefore  in  fact  be  modified,  except  in.  a  single  particular. 
That  particular  is  one  of  which  the  respondent  alone  in  her  individual 
capacity,  and  not  the  appellants,  can  complain.  As  the  widow  of  John 
R.  Wyman,  she  is  entitled  to  a  dower  interest  prior  to  the  rights  of 
his  creditors  in  this  fund.  That  should  have  been  preserved  by  the 
judgment.  It  may  be  that  any  direction  as  to  the  ultimate  disposition 
of  the  residue,  after  payment  of  the  debts  of  the  deceased,  will  be  un- 
important in  this  case.  But  the  judgment  taken  with  the  complaint 
and  the  issue  formed  upon  it  by  the  answer,  would  imply,  if  not  ad- 
judge, that  this  money  was  regarded  and  ordered  to  be  paid  over  by 
the  court  as  part  of  the  general  personal  estate,  and  should  be  dis- 
tributed and  accounted  for  as  such.  This  was  erroneous,  and  whether 
the  error  is  of  any  practical  importance  to  these  parties  or  not,  this 
also  should  be  corrected.  No  account  has  indeed  been  taken  of  the 
estate,  nor  are  we  in  a  situation  to  dismiss  the  appellants  from  a  right 
to  call  for  such  an  account  of  this  fund  or  of  its  ultimate  disposition. 
Their  right  to  do  so  should  therefore  be  preserved. 

The  judgment  should  be  modified  so  as  to  provide  for  the  satisfac- 
tion of  the  dower  interest  of  the  widow  in  the  moneys  in  question ; 
for  the  payment  of  the  surplus  to  her  as  the  administratrix,  to  be  ap- 
plied by  her  in  satisfaction  of  debts  entitled  to  payment  out  of  such 
assets  in  the  order  and  manner  established  by  law ;  and  that  the  resi- 
due, if  any,  be  divided  among  the  heirs  at  law  of  the  deceased  ac- 
cording to  their  rights  as  such  heirs.  Neither  party  to  have  costs  of 
their  appeal. 

Judgment  modified,  in  accordance  with  above  opinion. 


BUEHLER  v.  GLONINGER. 

(Supreme  Court  of  Pennsylvania,  1S34.     2  Watts,  226.) 

Replevin  by  Peter  Gloninger  against  Maria  Buehler,  William  N. 
Irvine  and  Peter  Keller.  George  Buehler  purchased  the  goods  for 
which  the  replevin  was  brought,  and  gave  his  notes  for  them,  with 
Peter  Gloninger,  the  plaintiff,  and  George  Oves  as  his  securities. 
The  property,  at  the  time  of  its  purchase,  was  transferred  by  bill  of 
sale  to  Gloninger  and  Oves  as  their  security,  but  went  into  the  pos- 
session of  George  .Buehler,  who  agreed  that  Gloninger  alone  should 
hold  that  bill  of  sale,  as  a  security  also  for  a  debt  due  to  him.  George 
Buehler  died  in  the  possession  of  the  property,  without  having  paid 
the  debt  due  to  Gloninger,  and  this  replevin  was  brought  against  the 
defendants,  who  were  his  administrators,  for  the  goods  mentioned  in 


558  PROBATE    AND    ADMINISTRATION.  (Part    3 

the  bill  of  sale.  The  defendants,  after  having  shown  that  they  were 
administrators,  [and]  had  given  bond  and  filed  an  inventory  of  the 
goods  of  their  intestate,  offered  to  prove  that  George  Buehler  was  in- 
solvent, and  that  the  value  of  these  goods  was  necessary  for  the  pay- 
ment of  his  debts.  This  evidence  was  objected  to  by  the  plaintiff,  and 
rejected;  the  court  being  of  opinion  that  the  Statute  13  Eliz.  was  not 
applicable  so  as  to  bar  the  plaintiff's  recovery,  and  this  was  the  as- 
signment of  error. 

Rogers,  J.  The  attention  of  the  court  has  been  particularly  di- 
rected to  two  errors  on  which  the  plaintiff  in  error  mainly  relies. 
First,  the  exclusion  of  evidence  of  the  insolvency  of  Buehler  the  in- 
testate; and  secondly,  that  part  of  the  charge  which  declares  that 
the  transfer  of  the  property  to  the  plaintiff  and  Oves,  and  to  the  plain- 
tiff himself,  was  good  against  the  defendants ;  and  that  they  can  make 
no  defense  that  Buehler  himself  might  not  have  made.  The  points  de- 
pend upon  the  same  principle,  and  may  be  considered  together.  There 
is  no  doubt  that  the  statute  of  13  Elizabeth  only  makes  void  a  deed 
as  against  creditors,  but  not  against  the  party  himself,  his  executors 
or  administrators ;  as  against  them  it  remains  a  good  deed.  Reichart 
V.  Castator,  5  Bin.  109,  6  Am.  Dec.  402 ;  Killinger  v.  Reidenhauer,  6 
Serg.  &  R.  531;  Simon's  Lessee  v.  Gibson,  1  Yeates,  291;  Hartley's 
Lessee  v.  McAnulty,  4  Yeates,  95.  And  in  Osborne  v.  Moss,  7  Johns. 
(N.  Y.)  161,  5  Am.  Dec.  252,  it  is  decided,  that  when  a  person  makes 
a  fraudulent  conveyance  of  his  goods  to  another  for  the  purpose  of  de- 
feating his  creditors,  and  dies  intestate,  the  conveyance,  though  void 
as  against  creditors,  is  good  against  the  intestate;  and  an  action  may 
be  rnaintained  against  the  administrator  for  the  goods.  The  law  is 
the  same  although  the  administrator  may  be  a  creditor  of  the  fraud- 
ulent intestate. 

Horner  v.  Leader,  Cro.  Jac.  270,  Yelv.  196,  which  is  cited  and  relied 
on  in  Osborne  v.  Moss,  is  to  the  same  point.  In  Horner  v.  Leader,  the 
intestate  made  a  grant  of  his  goods  to  B.  to  cheat  his  creditors,  and  he^ 
kept  possession  of  the  goods  and  died.  B.  then  sued  the  administra- 
tor for  the  goods,  and  he  pleaded  this  covin  and  fraud,  and  the  stat- 
ute of  Elizabeth,  which  declares  all  such  gifts  and  grants  void  as 
against  creditors.  The  plaintiff  replied  that  the  defendant,  the  ad- 
ministrator, had  assets  in  his  hands  to  satisfy  the  debts  demanded, 
and  that  the  deed  of  gift  was  made  upon  good  consideration,  etc. 
It  is  true  that  the  replication  was  withdrawn,  but  yet  in  neither  of  the 
cases  cited  did  it  appear  that  there  was  not  sufficient  assets  to  pay  the 
debts.  There  being  no  averment  that  the  estate  was  insolvent,  the 
presumption  was,  that  the  administrators  had  assets  in  their  hands 
sufficient  to  pay  the  debts ;  and  if  so,  these  decisions  are  in  strict  ac- 
cordance with  the  general  principle,  about  which  there  is  no  dispute. 
Inasmuch  as  we  are  to  take  it  that  the  estate  of  Buehler  is  insolvent, 
this  is   substantially   a  contest  between   the  fraudulent  grantee   and 


Ch.    2)  TITLE  AND   POWERS  OF  EXECUTORS.  559 

the  creditors  of  the  fraudulent  grantor,  and  as  such,  comes  within  the 
prohibition  of  the  statute  of  13  EHzabeth.  The  administrator  is  the 
trustee  of  the  creditors,  and  in  that  capacity  is  bound  to  protect  their 
interest.  The  personal  representatives,  in  fact,  have  no  interest  in  the 
controversy,  as  the  case  supposes  that  the  assets  are  insufficient  to  pay 
the  debts  of  the  intestate. 

Judgment  reversed,  and  a  venire  de  novo  awarded.^** 


CUTTING  V.  TOWER. 

(Supreme  Judicial  Court  of  Massachusetts,  1859.     14  Gray,  183.) 

Action  of  tort  for  fraud  and  deceit  in  selling  to  the  plaintiff's  intes- 
tate eight  bushels  of  damaged  and  poisoned  corn  meal,  which  caused 
the  death  of  the  intestate's  horses  when  given  to  them  as  food. 

At  the  trial  in  the  superior  court  of  Suffolk  at  March  term,  1858, 
the  defendants  objected  that  this  action  did  not  by  law  survive  to  the 
plaintiff.  Huntington,  J.,  overruled  the  objection,  the  jury  returned 
a  verdict  for  the  plaintiff*,  and  the  defendants  alleged  exceptions. 

BiGELOW,  J.  This  case  falls  within  the  general  rule  that  ac- 
tions of  tort  do  not  survive.  The  exception  created  by  Rev.  St.  c. 
93,  §  7,  that  actions  for  damage  done  to  real  or  personal  estate  shall 
survive,  was  intended  to  include  only  those  cases  where  injury  is  oc- 
casioned to  property  by  the  direct  wrongful  act  of  a  party,  and  not 
where  it  results  incidentally  or  collaterally  therefrom,  or  from  the 
doing  of  some  other  act,  or  the  happening  of  some  subsequent  event 
over  which  the  wrongdoer  has  no  control.  The  gist  of  the  action  in 
the  present  case  is  the  fraud  and  deceit  practiced  by  the  defendants  on 
the  plaintiff's  intestate  in  the  sale  of  merchandise.  For  this  an  action 
to  recover  damages  would  have  laid  in  his  favor  whether  the  meal 
which  he  purchased  had  ever  been  used  or  not.  It  was  not  therefore 
the  fraudulent  representation  of  the  defendants,  which  operated  di- 
rectly to  the  injury  of  any  personal  property.  It  was  the  use  to  which 
the  meal  was  put,  that  caused  the  damage  for  which  the  plaintiff  now 
seeks  to  recover.  But  that  was  not  the  act  of  the  defendants.  It 
was  only  a  pecuniary  loss  resulting  incidentally  from  the  sale  of  the 

10  But  see  Estes  v.  Howland,  15  R.  I.  127,  23  Atl.  624  (1885). 

"It  is  true  that,  upon  the  subject  of  the  right  of  the  admiuistrator  to  main- 
tain an  action  for  the  recovery  of  property  fraudulently  transferred  by  his 
decedent,  the  decisions  in  other  states  are  not  uniform.  The  decisions  have 
been  nmch  intlnenced  by  statutory  provisions.  Where  the  administrator  is 
regarded  as  succeeding  only  to  the  rights  of  his  decedent,  a  recovery  has,  of 
course,  been  denied.  Where  he  is  regarded  as  standing  in  the  rights  of  credit- 
oi's,  also,  it  has  been  allowed.  Here,  in  view  of  the  insolvency  of  the  estate 
and  the  provisions  of  the  statute,  the  administrator  asserts  the  rights  of  cred- 
itors." Shauck,  J.,  in  Douey  v.  Clark.  55  Ohio  St.  294,  304,  45  N.  E.  316,  317 
(1896).     Compare  Lynch's  Adm'r  v.  Mun-ay,  81  Vt.  97,  69  Atl.  133  (1908). 


560  PROBATE    AND    ADMINISTRATION.  (Part    3 

meal.  Suppose  the  meal,  instead  of  being  used  by  the  plaintiff's  in- 
testate to  feed  his  horses,  had  been  made  into  bread  for  his  family, 
and  caused  great  sickness  and  suffering  and  loss  of  time  to  him  and 
others.  It  would  hardly  be  said  that  an  action  in  such  case  would 
survive  under  St.  1842,  c.  89,  for  damage  to  the  person.  The  provi- 
sions of  the  statutes  allowing  actions  of  tort  to  survive  have  been 
strictly  construed,  so  as  not  to  extend  the  exceptions  beyond  the  clear 
intent  of  the  Legislature.  Read  v.  Hatch,  19  Pick.  47;  Nettleton  v. 
Dinehart,  5  Cush.  543. 
Exceptions   sustained.^' 


DOBBS  V.  GULLIDGE. 

(Supreme  Court  of  North  Carolina,  1838.     20  N.  C.  197.) 

This  was  an  action  of  trespass  quare  clausum  fregit,  brought  orig- 
inally by  William  Dobbs,  but  during  the  pendency  of  the  suit  he  died, 
and  the  present  plaintiff,  "the  widow  and  devisee  under  the  last  will 
and  testament  of  William  Dobbs,  came  into  court,  and  became  party 
plaintiff."  On  the  trial  at  Anson,  before  his  honor,  Judge  Nash,  on 
the  last  circuit,  the  plaintiff  exhibited  a  clear  title  to  the  tract  of  land 
on  which  the  trespass  was  committed,  but  she  had  no  other  possession 
than  that  which  the  law  annexes  to  the  title.  The  defendant  was  the 
owner  of  an  adjoining  tract,  and  about  two  years  before  the  action 
was  commenced,  cleared  a  field  of  about  two  acres,  fenced  it  in  and 
cultivated  it,  and  continued  in  the  possession  up  to  the  time  of  the 
trial.  At  the  time  the  defendant  cleared  the  field,  he  declared  that  he 
did  it  with  the  view  of  taking  possession.    Upon  this  case  the  defend- 

11  In  Jenks  v.  Hoag,  179  Mass.  583,  61  N.  E.  221  (1901),  where  the  court 
sustained  a  demurrer  to  a  declaration  by  an  administrator  against  the  de- 
fendant where  the  declaration  alleged  that  by  subornation  of  perjury  the  de- 
fendant induced  a  court  to  believe  that  the  defendant's  client  had  no  property 
applicable  on  an  execution  held  by  the  intestate  against  the  client,  the  court 
said:  "It  has  been  decided  repeatedly  that  'a  mere  fraud  or  cheat  by  which 
one  sustains  a  pecuniary  loss  cannot  be  regarded  as  a  damage  done  to  per- 
sonal estate.'  Leijjirate  v.  Moulton,  11.5  Mass.  ,5.52,  and  cases  there  cited.  See, 
also.  Cutter  v.  Hamlen,  147  Mass.  471  [18  N.  E.  397,  1  L.  R.  A.  429].  The 
statute  was  intended  to  give  a  remedy  which  should  survive  only  for  injuries 
of  a  speciOc  character  'to  real  or  personal  estate.'  " 

So  under  a  statute  making  "actions  of  tort  for  assault,  battery,  imprison- 
ment or  other  damage  to  the  person"  survive,  the  court  said:  -'The  words 
•damage  to  the  person,'  as  here  used,  do  not,  indeed,  extend  to  torts  not  di- 
rectly affecting  the  person,  but  only  the  feelings  or  reputation,  such  as  breach 
of  promise.  slaTider.  or  malicious  prosecution.  Smith  v.  Sherman,  4  Cush.  408; 
Nettleton  v.  IMnehart,  5  Cush.  543.  But  they  do  include  every  action,  the  sub- 
stantial cause  of  which  is  a  bodily  injury,  or,  in  the  words  of  Chief  Justice 
Shaw,  In  4  Cush.  413,  'damage  of  a  physical  character,'  whether  the  connec- 
tion between  the  cause  and  the  effect  is  so  close  as  to  support  an  action  of 
trespass,  or  so  indirect  as  to  require  an  action  on  the  ease  at  common  law." 
Gray,  J.,  In  Norton  v.  Sewall,  106  Mass.  143-145,  8  Am.  Rep.  298  (1870). 


Ch.    2)  TITLE  AND   POWERS  OF   EXECUTORS.  561 

ant  moved  that  the  plaintiff  should  be  nonsuited,  on  the  ground  that 
she  ought  to  have  brought  an  action  of  ejectment,  and  that  trespass 
could  not  be  maintained.  His  honor  refused  to  nonsuit  the  plaintiff, 
but  instructed  the  jury  that  the  action  was  well  brought;  that  as  the 
defendant  was  a  mere  intruder  without  title,  his  possession  extended 
only  to  the  boundaries  of  his  inclosures;  that  the  plaintiff  was  not 
entitled  in  this  action  to  any  damages  for  the  rents  and  use  of  the  land 
within  the  fence  of  the  defendant ;  but  was  entitled  to  damages  for 
the  entry  on  her  land  by  the  defendant.  Under  these  instructions  the 
plaintiff  had  a  verdict  and  judgment,  and  the  defendant  appealed. 

Gaston,  J,  The  exception  taken  by  the  defendant  to  the  charge 
of  the  judge  is  untenable.  Trespass,  being  a  remedy  for  an  injury 
to  the  possession,  cannot  be  maintained  by  him  who  had  not  posses- 
sion when  the  wrong  was  done.  But  where  there  is  no  actual  posses- 
sion in  another,  the  law  adjudges  him  in  possession  who  has  the  prop- 
erty. This  possession,  usually  called  with  us  constructive  possession, 
is  fully  sufficient  to  maintain  the  action. 

If  there  was  no  other  objection  to  the  judgment  below  it  would  be 
affirmed.  But  there  is  an  error  apparent  On  the  record  which  the 
appellant  insists  upon,  and  on  account  of  which  the  judgment  must  be 
reversed.  William  Dobbs,  who  instituted  the  action,  died  pending  the 
suit,  and  thereupon  "Penelope  Dobbs,  the  widow  and  devisee  under 
the  last  will  and  testament  of  William  Dobbs,  came  into  court  and 
was  made  party  plaintiff."  At  common  law  the  action  of  trespass 
could  not  be  maintained  by  or  against  representatives.  By  our  act  of 
1799,  c.  532,  it  is  declared  that  the  action  of  trespass  "where  property 
is  in  contest,  and  such  action  is  not  purely  vindictive,"  together  with 
certain  other  actions  therein  enumerated,  shall  not  abate  or  be  discon- 
tinued by  the  death  of  either  party  plaintiff  or  defendant,  but  the  same 
shall  and  may  be  revived  in  the  manner  prescribed  for  the  revival  of 
other  actions.  The  manner  referred  to  is  by  an  application  to  the  court 
of  the  heirs,  executors  or  administrators  of  the  plaintiff,  if  he  hath 
died,  or  by  bringing  into  court  the  heirs,  devisees,  or  executors  or  ad- 
ministrators of  the  defendant,  if  it  be  his  death  that  renders  a  revival 
of  the  suit  necessary.  Whether  the  action  is  to  be  revived  by  or 
against  heirs — or  by  or  against  the  personal  representatives — must  de- 
pend upon  the  nature  of  the  action.  Trespass  is  purely  a  personal  ac- 
tion sounding  wholly  in  damages.  A  right  to  recover  a  recompense 
for  damages  sustained  is  a  chose  in  action,  which  if  permitted  to  sur- 
vive the  person  damaged,  survives  to  his  executor  or  administrator.^* 
The  heir  or  devisee  has  no  interest  in  or  claim  to  it,  and  can  not  there- 
+ore  either  originally  prosecute  a  suit  for  it,  or  revive  one  that  has 
been  instituted  in  the  life  of  the  person  injured.  McPherson  v.  Seguine, 
14  N.  C.  153. 

12  See  Union  Savingis  Bk.  &  Trust  Co.  v.  Western  Union  Tel.  Co.,  78  Obio 
St.  89,  86  N.  E.  478,  128  Am.  St.  Rep.  675  (1908). 
Cost.  Wills— 30 


562  PROBATE    AND    ADMINISTRATION.  (Part  3 

As  a  judgment  has  been  erroneously  rendered  for  the  plaintiff  be- 
low, when  no  judgment  ought  to  have  been  rendered  for  either  party, 
that  judgment  is  reversed,  and  judgment  on  the  verdict  is  arrested. 

Per  Curiam.    Judgment  reversed." 


SECTION  2.— TIME  WHEN  TITLE  VESTS 


BRAZIER  V.  HUDSON. 

(High  Court  of  Chancery,  1S36.     8  Sim.  67.) 

A  term  for  years  was  vested  in  one  Hodgson.  He  died,  having  ap- 
pointed his  wife  his  executrix.  She  assigned  the  term  to  Baxter,  and 
died  without  proving  her  husband's  will  After  her  death  letters  of 
administration,  limited  as  to  the  term,  were  taken  out  to  Hodgson. 

On  the  hearing  of  an  exception  to  the  master's  report  as  to  the  title 
to  the  estate,  one  question  was  whether  the  administrator  was  the 
proper  person  to  assign  the  term  to  a  trustee  for  the  purchaser. 

The  Vice  Chancellor  [Sir  Lancelot  Shadwell].  Lord  Holt, 
in  his  judgment  in  Wankford  v.  Wankford,  1  Salk.  299,  says  that  an 
act  done  by  an  executor  is  valid,  provided  the  will  is  ultimately  proved, 
although  the  executor  who  did  the  act  died  without  proving  the  will. 
And  I  cannot  but  think  that  the  convenience  of  mankind  requires  that 
all  the  acts  of  an  executor  that  would  be  valid  if  probate  had  been 
taken,  should  be  considered  as  valid  if  the  will  is  ever  afterwards 
proved.  The  consequence  is  that  upon  letters  of  administration  to 
Hodgson,  with  his  will  annexed,  being  taken  out,  the  assignment  to 
Baxter  will  be  established. 

Exception  allowed. 


STAGG  v.  GREEN. 

(Supreme  Court  of  Missouri,  1871.    47  Mo.  500.) 

Bliss,  J.  The  petition  charges  that  the  defendant  made  his  prom- 
issory note  to  the  order  of  one  Linnenfelser,  deceased,  who  devised 

13  "In  many,  if  not  all,  of  the  states  of  the  United  States,  there  are  statutes 
that  very  much  limit  the  application  of  the  common-law  rule  as  to  the  effect 
of  the  death  of  a  party  in  actions  ex  delicto,  so  that  it  is  now  the  general 
American  doctrine  that  all  causes  of  action  arising  from  torts  to  property,  real 
or  personal — injuries  to  the  estate  hy  wliich  its  value  diminishes.— survive  and 
go  to  the  executor  or  administrator  as  assets  In  his  hands.  And  in  some  states 
statutory  provision  is  made  for  the.  survival  of  actions  of  tort  for  injuries  to 
the  person."    1  Cyc.  52. 


Ch.    2)  TITLE   AND   POWERS   OF   EXECUTORS.  563 

and  bequeathed  all  his  property  to  his  wife  Mary,  and  made  her  his 
sole  executrix;  that  his  will  was  duly  probated,  and  his  wife,  as  ex- 
ecutrix, sold  and  indorsed  said  note  to  one  Kifferer,  who  indorsed  it 
to  the  plaintiff,  who  brings  suit  upon  the  note.  Defendant  demurs  for 
the  reason  that  plaintiff  shows  no  title  to  the  note ;  the  said  executrix 
not  having  qualified  according  to  law,  and  having  no  right  to  dis- 
pose of  it. 

By  the  common  law,  the  personal  property  of  the  testator  vested 
in  the  executor,  and  he  might,  by  virtue  of  the  will,  take  immediate 
possession  of  it,  dispose  of  it,  and  in  almost  every  respect  treat  it  as 
his  own.  He  was  not  bound  even  to  wait  for  its  probate,  although  he 
could  not  appear  in  court  until  his  right  had  been  established  by  proof 
of  the  will.^*  The  plaintiff  bases  his  title  to  the  note  upon  the  right 
of  the  executrix,  as  such,  to  dispose  of  the  personal  property  of  the 
testator  as  recognized  by  the  common  law,  and  claims  that  she  is  not 
restrained  therein  by  anything  in  the  statute  requiring  bond  and  the 
taking  out  of  letters. 

The  doctrine  of  the  common  law  in  this  regard  has  not  been  adopted 
in  most  of  the  states.  The  executor  here  does  not,  as  in  England, 
derive  his  power  solely  from  the  will,  but  the  law  imposes  certain 
obligations  upon  him  before  he  is  permitted  to  execute  it.  The  fact 
that  one  is  named  in  the  will  as  executor  does  not,  as  at  common  law, 
make  him  executor  in  fact,  but  only  gives  him  the  legal  right  to  be- 
come executor  upon  complying  with  the  conditions  required  by  law. 
The  statute  of  our  state  expressly  requires  two  things  of  one  named 
as  executor  before  letters  can  issue  to  him:  First,  that  he  take  the 
oath  (section  16);  and  second,  that  he  give  bond  (section  19).  And 
assuming  that  the  latter  requirement  is  imperative,  section  11  for- 
bids any  one  from  intermeddling  with  the  estate  except  those  who 
give  bond,  in  case  more  than  one  person  is  named  in  the  will. 

This  question  has  not  been  directly  before  this  court,  but  the  view 
above  taken  has  been  everywhere  assumed  or  taken  for  granted.  No 
executor  has  ever  been  recognized  as  such  who  has  not  qualified  ac- 
cording to  law.  The  courts  of  other  states,  however,  have  directly 
passed  upon  it.  In  Monroe,  Ex'r  of  Jones,  v.  James,  4  Munf.  (Va.) 
194,  a  person  named  as  executor  had  sold  a  slave  before  he  had  quali- 
fied as  such.  The  other  executor  named  afterward  qualified  and  sued 
for  and  recovered  the  slave.     The  whole  question  was  fully  consid- 

14  "An  executor  may  at  law  bring  an  action  before  probate,  but  cannot  de- 
clare till  the  will  is  actually  proved,  and  a  bill  in  equity  being  in  tbe  nature 
of  a  declaration  at  law,  an  executor  cannot  bring  a  bill  bere  till  after  probate." 
Lord  rir.i-d\Yicke,  C,  in  Mitcbell  v.  Smart,  3  Atk.  GOG  (1747).  See,  bowever, 
1  Dunieli's  Ch.  PI.  &  Pr.  (6th  Am.  Ed.)  *318,  that  "if  an  executor,  before  pro- 
bate, files  a  bill,  alleging  that  he  has  proved  the  will,  such  allegation  will  ob- 
viate a  demurrer.  He  must,  however,  prove  the  will  before  the  hearing  of  the 
cause,  and  then  the  probate  will  be  sufficient  to  support  the  bill,  although  it 
bears  date  subsequently  to  the  filing  of  it." 


564  PROBATE    AND    ADMINISTRATION.     '  (Part  3 

ered  by  the  court,  and  the  doctrine  of  the  common  law  acknowledged ; 
but  inasmuch  as  the  statute  of  Virginia  required  that  executors  should 
give  bond,  the  court  held  that  they  were  not  authorized  to  dispose  of 
the  personal  property  until  they  had  done  so.  See,  also,  upon  the 
same  point  Carpenter  v.  Goring,  20  Ala.  587.  In  Stearns  v.  Burn- 
ham,  5  Me.  261,  17  Am.  Dec.  228,  the  testator  had  been  a  resident  of 
Massachusetts  and  held  a  note  made  by  a  citizen  of  Maine.  His  ex- 
ecutrix, who  duly  qualified  to  act  as  such  under  the  law  of  Massa- 
chusetts, indorsed  the  note  to  the  plaintiff,  who  brought  suit  as  in- 
dorsee. The  court  held  that  she  could  give  him  thereby  no  power  to 
sue;  that  she  derived  her  authority  from  the  laws  of  Massachusetts, 
which  had  no  extra-territorial  force;  that  she  could  not  sue  in  Maine 
herself  without  qualifying  according  to  its  laws;  nor  could  she  so  pass 
title  in  the  paper  as  to  authorize  another  to  do  so.  The  contrary 
seems  to  be  held  upon  the  main  question  in  Harper  v.  Butler,  2  Pet. 
239,  7  L.  Ed.  410,  where  the  assignee  of  an  executor  was  permitted 
to  recover  in  Mississippi  upon  an  assignment  made  in  Kentucky ;  but 
the  right  of  the  executor  to  act  in  the  latter  state  was  conceded,  he 
having  there  duly  qualified  as  executor.  See,  also.  Rand,  Adm'r,  v. 
Hubbard  et  al.,  4  Mete.  (Mass.)  252. 

Counsel  insist  that  the  authorities  in  Virginia  and  other  states  can- 
not apply  to  Missouri  because  of  the  different  provisions  in  their  stat- 
utes ;  that  in  those  states  the  executor  is  absolutely  prohibited  from 
acting  without  giving  bond,  etc.  When  the  above  case  of  Monroe 
V.  James  was  decided,  the  statute  then  in  force  provided  that  a  failure 
to  give  security  should  amount  to  a  refusal  to  act.  Our  statute  (sec- 
tion 10)  provides  that  after  probate  of  any  will,  letters  testamentary 
shall  be  granted  to  the  persons  therein  appointed  executors.  But  such 
letters  cannot  be  granted  unless  they  qualify  by  giving  bond,  etc.  If 
the  executor  named  shall  refuse  to  act,  then  letters  shall  be  granted  to 
others.  By  necessary  implication  he  is  prohibited  from  acting  as 
plainly  as  though  the  prohibition  were  direct.  I  can  have  no  doubt 
that  under  our  laws  the  executor,  by  virtue  of  being  so  named,  has  no 
power  to  intermeddle  with  the  estate  except  under  pressing  necessity, 
and  only  so  far  as  is  necessary,  until  letters  have  been  obtained,  al- 
though if  he  shall  so  intermeddle  and  shall  subsequently  qualify,  his 
letters  will  relate  back  and  cover  his  former  acts.  2  Redf.  Wills, 
13,  16,  §  2. 

The  policy  of  the  law  is  obvious.  The  executor  is  but  a  trustee ;  he 
receives  nothing  in  his  own  right,  but  everything  for  the  use  of  others. 
Before  assuming  the  relation,  before  he  is  permitted  to  take  possession 
of  and  dispose  of  property  thus  intrusted  to  him,  he  is  required  to  give 
ample  security  for  the  benefit  of  those  for  whom  he  acts.  If  he  were 
permitted  to  first  dispose  of  the  property,  whether  chattels  or  choses 
in  action,  the  whole  purpose  of  the  law  might  be  defeated.  Creditors 
and  legatees  might  be  defrauded,  and,  if  the  executor  were  not  re 


Ch.    2)  TITLE  AND  POWERS  OF   EXECUTORS.  5G5 

Sponsible,  would  be  without  remedy.     There  is  no  security  to  them  but 
to  hold  him  absolutely  disqualified  to  act  until  he  has  complied  with 
the  requirements  of  the  statute. 
The  judgment  will  be  affirmed.     The  other  Judges  concur.^' 


WELCHMAN  v.  STURGIS. 
(Court  of  Queen's  Bench,  1849.     13  Q.  B.  552.) 

Indebitatus  assumpsit  by  plaintiff  as  administratrix.  First  count, 
for  money  had  and  received  to  her  use  as  administratrix.  Second 
count,  on  an  account  stated  with  her  as  administratrix.  Plea:  Non 
assumpsit. 

On  the  trial,  before  Piatt,  B.,  at  the  last  Monmouthshire  spring 
assizes,  it  appeared  that  the  defendant  had  lived  as  housekeeper  with 
the  intestate  since  his  separation  from  his  wife,  the  present  plaintiff, 
and  had,  after  his  death  in  May,  1848,  and  before  the  taking  out  of 
letters  of  administration  by  the  plaintiff  in  June  of  the  same  year,  ap- 
plied, in  payment  of  the  funeral  and  other  expenses,  the  cash  that  was 
in  the  house  at  the  time  of  intestate's  death,  as  well  as  divers  sums  of 
money  arising  from  the  sale  of  his  effects,  and  also  certain  cash  pay- 
ments made  to  defendant  after  intestate's  death  by  parties  indebted  to 
him.  For  the  recovery  of  this  money  the  present  action  was  brought. 
The  defendant's  counsel  contended  that  the  plaintiff  could  not  recover 
in  this  action,  inasmuch  as  the  money  claimed  had  been  received  by 
the  defendant,  and  paid  away  by  her,  before  the  grant  of  administra- 
tion to  the  plaintiff,  and  the  property  of  the  intestate  did  not  vest  in 
plaintiff  before  such  grant.  The  learned  judge  overruled  the  objec- 
tion, and  a  verdict  was  found  for  the  plaintiff  on  the  first  count,  and 
for  the  defendant  on  the  second. 

Keating,  for  the  defendant,  now  moved  for  a  new  trial  on  the  ground 
of  misdirection. 

Patteson.  J.^"  I  think  we  should  allow  of  no  doubt  that  the  admin- 
istratrix in  this  case  is  entitled  by  relation  to  sue  the  defendant  for 

IB  "At  death  a  man's  estate  really  passes  into  the  hands  of  the  law  for  ad- 
ministration, as  much  when  he  dies  testate  as  when  intestate;  except  the^t, 
in  the  former  case,  he  fixes  the  law  of  its  distribution  after  payment  of  deljits 
and  usually  appoints  the  persons  who  are  to  execute  his  will.  But  even  this 
appointment  is  only  provisional,  and  required  to  be  approved  by  the  law  be- 
fore it  is  complete ;  and  therefore  the  title  to  the  office  of  executor  is  derived 
rather  from  the  law  than  from  the  will.  The  law,  however,  allows  a  man  to 
appoint  his  executors,  subject  to  this  approval  and  treats  them,  when  ap- 
pointed, as  entitled  to  the  office  until  they  renounce  it,  if  they  are  not  legally 
incompetent  to  fill  it."  Lowrie,  J.,  in  Shoenberger's  Ex'rs  v.  Lancaster  Sav- 
ings Institution.  28  Pa.  459,  466  (1857).  See,  also,  Chadwick  v.  Stiljihen.  105 
Me.  242,  74  Atl.  50  (1909).  See  1  Woerner's  American  Law  of  Administra- 
tion  (2d  Ed.)   §    172. 

i«The  decision  on  an  Incidental  point  given  in  the  report  following  this 
opinion  is  omitted. 


566  PROBATE    AND    ADMINISTRATION.  (Part   3 

money  had  and  received  to  her  use.  There  are  express  decisions  to 
show  that  she  could  have  sued  in  trespass  or  trover,  for  a  trespass  or 
a  tortious  conversion  of  the  same  date.  Now,  as  regards  the  money 
produced  by  the  sale  of  the  effects,  there  having  been  no  affirmance  of 
such  sale  by  the  plaintiff",  she  is  in  a  position  to  bring  an  action  of 
trover;  she  may  also  waive  the  tort,  and  bring  an  action  on  contract. 
With  respect  to  the  money  due  to  the  intestate,  and  received  by  the 
defendant,  it  is  true  that  no  privity  existed  between  her  and  the  plain- 
tiff; but,  as  such  money  is  due  to  the  administratrix  by  relation,  she 
may  affirm  the  receiving,  and  sue  for  the  money  as  had  and  received 
to  her  use.  In  Foster  v.  Bates,  13  M.  &  W.  226,  the  court  said :  "There 
is  no  occasion  to  have  recourse  to  the  doctrine,  that  one  may  waive  a 
tort  and  recover  on  a  contract ;"  but  in  the  present  case  that  doctrine 
must  be  applied ;  and,  the  letters  of  administration  relating  back,  the 
administratrix  may  elect  to  treat  the  money  as  received  to  her  use. 

Erle,  J.  With  respect  to  the  goods  sold  by  the  defendant,  the  case 
of  Fyson  v.  Chambers,  9  M.  &  W.  460,  is  another  authority  to  show 
that  the  plaintiff  has  a  right  to  sue :  and  I  do  not  think  that  any  dis- 
tinction can  be  drawn,  as  regards  the  relation  back  of  the  letters  of 
administration,  between  goods  and  money  specifically  belonging  to  the 
intestate,  or  due  to  him,  at  the  time  of  his  death. 

Rule  refused.^^ 


GILKEY  V.  HAMILTON. 

(Supreme  Court  of  Michigan,  1871.     22  Mich.  2S3.) 

The  plaintiffs  below,  as  administrators  of  the  estate  of  Harvey 
Hamilton,  brought  their  action  in  the  circuit  court  of  the  county  of 
Kalamazoo  against  Edward  Gilkey,  of  replevin  for  a  horse,  which 
belonged  to  their  intestate  at  the  time  of  his  death.  The  plaintiffs, 
who  are  respectively  the  son  and  wife  of  Harvey  Hamilton,  subsequent 
to  the  death  of  Hamilton  and  prior  to  the  issuing  of  letters  of  adminis- 
tration to  them,  had  delivered  the  horse  to  an  agent  with  instructions 
to  sell  or  dispose  of  him.  Under  these  instructions  the  agent  trans- 
ferred the  horse  to  defendant  Gilkey,  who  claimed  that  the  transac- 
tion was  a  valid  sale,  and  refused  to  deliver  the  horse  to  the  plaintiffs 
when  demanded  by  them  after  they  had  received  their  letters  of  ad- 

iT  The  title  of  an  ndininistrator  to  the  goods  of  the  Intestate  takes  effect 
by  relation  from  the  intestate's  death  for  the  purpose  of  enabling  the  admin- 
istrator to  maintain  trover  for  a  conversion  after  the  intestate's  death  and  be- 
fore administration  grnnted.  See  Rabcock  v.  Booth.  2  Hill  (N.  Y.)  181,  38  Am. 
Dec.  578  (1842).  See,  also,  Ilathorn  v.  Eaton,  70  Me.  219  (1879),  and  Dunphy 
V.  Callahan,  120  App.  Div.  11.  110  N.  Y.  Supp.  179  (1908),  which,  however,  were 
cases  of  an  executor.  And  see  38  Am.  Dec.  583,  note.  In  a  proper  case  the 
tort  mav  be  waived  and  an  action  brought  on  the  quasi  contract.  Heber  v. 
Heber's  Estate.  139  Wis.  472.  121  N.  W.  328  (1909).  See,  also,  Hagar  v.  Nor- 
ton, 188  'Mass.  47,  73  N.  E.  1073  (1905).  On  the  rule  where  no  administration 
le  had,  see  cases  on  the  necessity  and  effect  of  probate,  ante,  pp.  514-520. 


Ch.    2)  TITLE   AND   POWERS   OF   EXECUTORS.  567 

ministration.  On  the  trial  the  court  excluded  all  evidence  of  the  in- 
structions by  the  plaintiffs  relative  to  the  sale  or  transfer  of  the  horse, 
prior  to  their  appointment  as  administrators;  and,  under  the  charge  of 
the  court,  they  had  a  verdict  and  judgment,  which  the  defendant,  Gil- 
key,  brings  into  this  court  for  review. 

CooLEY,  J.  This  case  presents  the  question  whether,  where  one  in- 
terferes with  the  property  of  a  deceased  person  and  sells  a  portion 
thereof  without  right,  and  is  afterwards  appointed  administrator  on 
the  estate  of  such  deceased  person,  he  will  be  estopped  by  his  prior 
acts  from  recovering  the  property  for  the  estate. 

The  plaintiff  in  error  insists  that  he  is ;  and  he  calls  our  attention  to 
a  considerable  list  of  judicial  decisions  in  which  it  has  been  held,  that 
when  one  is  appointed  administrator  on  the  estate  of  a  deceased  per- 
son, his  title  relates  back  to,  and  takes  effect  from,  the  date  of  the 
death  of  the  intestate.  And  the  inference  he  deduces  from  these  cases 
is,  that  the  legal  effect  of  whatever  is  done  by  the  person  thus  appointed 
intermediate  the  death  of  the  intestate  and  his  own  appointment,  is 
precisely  the  same  as  though  he  had  held  letters  of  administration  at 
that  time. 

The  doctrine  of  relation  is  a  familiar  and  important  one,  and,  indeed, 
is  quite  necessary  to  the  protection  of  the  interests  of  the  estate.  But 
this  necessity  is  the  reason  upon  which  it  rests,  and  it  is  no  part  of  its 
purpose  to  legalize  lawless  acts  which  may,  and  generally  would,  work 
the  estate  a  prejudice. 

Under  our  probate  system,  an  administrator  is  a  mere  officer  of  the 
law,  who  has  title  to  the  assets  for  the  purpose  of  collecting  and  dispos- 
ing of  the  same  for  the  benefit  of  creditors  and  the  next  of  kin.  When 
he  receives  his  letters,  his  title  is  correctly  said  to  relate  back  to  the 
death  of  the  intestate;  but  it  is  an  official  title,  and  his  being  clothed 
with  it  cannot  make  good  the  prior  acts  which  he  has  not  assumed  to 
do  officially,  but  in  a  different  capacity  from  that  in  which  h§  is  now 
acting.  One  man  appointed  administrator  cannot  have  less  power 
than  any  other  man  would  have  had  if  he  had  received  the  same  ap- 
pointment; the  force  and  effect  of  his  letters  cannot  be  limited  and 
restrained  by  his  previous  acts  in  his  private  character,  any  more  than 
the  official  authority  of  a  sheriff*  or  any  other  public  officer  can  be 
limited  and  restrained  by  what  he  may  have  done  as  an  individual 
previous  to  his  election.  On  his  appointment,  the  administrator  be- 
comes vested  officially,  and  for  the  purposes  of  the  trust,  with  all  such 
title  as  his  intestate  had  to  the  personalty  at  his  death  ;  and  he  is  neither 
obliged  to,  nor  has  he  the  right  to,  recognize,  validate,  and  bind  the 
estate  by  the  unauthorized  acts  which  have  been  done  to  the  prejudice 
of  the  estate  by  any  one  while  the  title  was  in  abeyance. 

The  doctrine  of  executor  de  son  tort  is  alluded  to  as  having  some 
bearing,  but  it  is  a  doctrine  not  permissible  in  our  system.  Our  law 
looks  to  the  interest  of  the  estate,  and  employs  the  administrator  as 
a  mere  instrument  to  guard,  defend,  and  advance  that  interest.     To 


568  PROBATE    AND    ADMINISTRATION.  (Part   3 

apply  the  doctrine  of  estoppel  as  between  the  administrator  and  one 
whom,  as  an  individual,  he  may  have  dealt  with  improperly,  would  be 
to  treat  the  administrator  as  more  important  than  the  estate — the  agent 
as  more  important  than  the  principal — the  instrument  as  more  to  be 
regarded  than  the  object  to  accomplish  which  the  instrument  is  created. 
In  truth,  the  administrator  is  merely  the  representative  of  the  estate ; 
the  estate,  in  his  person,  is  the  party  to  the  contracts  he  makes  and 
the  suits  he  brings ;  and  to  make  the  doctrine  of  estoppel  applicable,  it 
must  be  shown  that  the  equities  it  rests  upon  are  equities  against  the 
estate.  But  certainly  there  is  nothing  in  the  fact  that  a  man  is  ap- 
pointed administrator,  who  has  previously  misconducted  himself,  which 
can  justly  raise  against  the  estate  any  equities,  or  which  can  justly 
deprive  the  creditors  or  next  of  kin  of  any  of  their  rights  in  its  assets. 

We  do  not  deem  it  necessary  to  examine  this  subject  in  detail,  be- 
cause we  regard  the  previous  decisions  in  Cullen  v,  O'Hara,  4  Mich. 
138,  and  Morton  v.  Preston,  18  Mich.  71,  100  Am.  Dec.  146,  as  con- 
clusive upon  it;  and  we  have  only  alluded  in  very  general  terms  to 
what  seem  to  us  the  obvious  reasons  on  which  those  cases  rest. 

The  judgment  must  be  affirmed,  with  costs.  The  other  justices  con- 
curred.^* 


SECTION  3.— DEBTS  DUE  FROM  THE  PERSONAL  REPRE- 
SENTATIVE AS  ASSETS 


LYON  V.  OSGOOD  et  al. 

(Supreme  Court  of  Vermont,  1886.     58  Vt.  707.  7  Atl.  5.) 

Bill  in  equity  by  surety  on  executor's  bond  to  be  relieved  from  lia- 
bility on  account  of  insolvency  of  executor,  who  had  charged  his  debt 
to  testator  as  assets. 

Walker,  J.^'  The  administration  bond,  which  was  executed  by 
Daniel  R.  Osgood  as  principal,  and  Thomas  J.  Lyon,  the  orator,  as 
surety,  to  the  probate  court  upon  Osgood's  appointment  as  executor  of 
the  will  of  Alexander  Barton,  was  in  the  usual  form,  and  conditioned 
for  the  executor's  inventorying  and  accounting  for  all  the  assets  of 
said  Barton's  estate,  and  for  the  faithful  performance  of  his  trust  as 
such  executor.  From  the  master's  report  it  appears  that  the  estate 
was  inventoried  and  appraised  at  $9,935.82,  which  sum  was  made  up 
of  personal  property  appraised  at  $427,  and  a  note  which  Osgood  was 

18  But  see  Alvord  v.  Marsh,  12  Allen  (Mass.)  603  (1866),  where  the  court 
field  that  letters  of  administration  rel.ite  baclc  to  the  death  of  the  Intestate 
and  legalize  "receipts  of  property  by  the  administrator  for  which  he  would 
otherwise  have  been  responsible  as  executor  de  son  tort." 

18  The  siateinent  of  facts  and  part  of  the  opinion  are  omitted. 


Ch.    2)  TITLE   AND   POWERS   OF   EXECUTORS.  569 

owing  the  testator,  dated  September  30,  1873,  on  which  there  was  due, 
at  the  time  of  appraisal,  March  10,  1877,  the  sum  of  $9,508.83.  On  the 
eighth  day  of  January,  1878,  Osgood,  after  due  pubHcation  of  notice 
for  that  purpose,  rendered  his  administration  account  to  the  probate 
court,  charging  himself  with  the  inventory,  $9,935.83,  and  crediting 
himself  with  sundry  disbursements,  amounting  to  $533.41,  and  with 
$350  paid  on  legacies  to  Charles,  Cleora,  and  Abigail,  making  $773.41, 
leaving  an  apparent  balance  in  his  hands  of  $9,163.41,  as  to  which 
final  decree  of  distribution  was  made  on  the  same  day  according  to  the 
provisions  of  the  will,  and  from  Which  no  appeal  was  taken.  In  making 
the  payments  allowed  in  his  account,  Osgood  paid  of  his  own  funds 
$346.41,  which  should  be  treated  as  a  payment  on  his  note. 

The  orator  had  no  knowledge  of  this  settlement  until  suit  was 
brought  against  him  on  the  bond.  It  also  appears  from  the  master's 
report  that  Osgood,  at  the  time  of  his  appointment  and  at  the  time  of 
rendering  his  administration  account,  was  not  solvent;  that  his  whole 
property  did  not  exceed  in  value  the  sum  of  $4,300  when  appointed, 
and  that  his  financial  condition  had  not  improved  at  the  time  of  ren- 
dering his  account;  and  that,  with  the  exception  of  $331  paid  to  the 
legatees  Charles,  Cleora,  and  Abigail,  in  1879  and  in  1881,  he  has  used 
in  the  support  of  his  family,  and  lost  in  unfortunate  business  ventures, 
all  his  property,  and  is  now  worthless.     *     *      ♦ 

The  ground  of  the  orator's  complaint  is  that  the  executor's  account- 
ing to  the  probate  court  for  the  whole  amount  of  his  indebtedness  to 
the  estate  as  assets  in  his  hands,  when  in  fact  its  collectible  value  was 
less  than  one-half  the  amount  due  thereon,  was  a  fraud  upon  him, 
and  does  him  great  injustice. 

The  orator  was  not  a  party  to  the  accounting,  nor  was  he  necessarily 
so.  His  liability  to  pay  attaches  on  the  failure  of  the  executor  to  pay 
the  legatees  according  to  the  decree  of  the  court,  and  his  right  to  de- 
fend against  the  decree  for  fraud  or  mistake  is  not  barred  by  the  ac- 
tion of  the  probate  court.  The  decree  is  undoubtedly  conclusive  agamst 
the  surety,  unless  it  works  a  fraud  upon  him. 

If  he  has  been  defrauded  by  the  accounting  or  decree,  his  remedy  is 
in  the  court  of  chancery,  where  the  peculiar  rights  of  sureties  origi- 
nated, and  have  always  been  considered,  and  which  always  interposes 
to  relieve  against  fraud,  and  prevent  gross  injustice.  If  the  executor 
had  charged  himself  in  the  accounting  with  $1,000  which  were  not 
assets  of  the  estate,  and  the  probate  court  had  made  distribution  there- 
of to  the  legatees,  and  they  had  brought  suit  at  law  upon  the  executor's 
bond  to  enforce  the  decree  against  the  surety  upon  default  of  his 
principal,  it  would  not  be  contended  that  the  court  of  chancery  had 
not  jurisdiction  to  give  the  surety  relief  against  such  a  fraudulent 
decree.  Such  is  the  ground  of  the  orator's  complaint  here ;  and  we 
think,  upon  principle  and  authority,  the  court  of  chancery  has  juris- 
diction.   Ordinary  v.  Kershaw,  14  N.  J.  Eq.  537. 


570  PROBATE    AND    ADMINISTRATION.  (Part   3 

The  orator  insists  that  he  should  be  absolved  from  all  liability  upon 
the  bond  for  any  decree  of  the  probate  court  awarding  any  sum  to  the 
executor  or  his  heirs,  and  to  Lydia  Osgood,  his  wife,  and  also  from 
all  liability  to  the  other  legatees,  Charles,  Cleora,  and  Abigail,  and 
their  heirs,  except  such  portions  of  their  legacies  as  have  been  paid 
on  the  note,  or  of  the  collectible  value  of  it,  which  has  been  ascertained 
by  the  master  to  be  $4,300. 

It  is  contended  by  the  defendants,  answering,  that,  when  Osgood  was 
appointed  executor  of  his  creditor's  will,  he  became  thereby  liable  to 
account  for  his  indebtedness  to  the  estate  in  his  administration  account, 
and  the  surety  on  his  administration  bond  also  became  responsible  for 
such  indebtedness ;  that  is,  that  the  appointment  of  the  debtor  as  such 
executor,  whether  solvent  or  insolvent,  operated  as  a  payment  of  the 
whole  debt  to  the  executor  as  actual  money  assets  of  the  estate.  Where 
the  executor  is  solvent,  there  is  no  question  but  that  the  rule  contended 
for  by  the  defendants  is  the  true  one,  and  the  surety  would  be  holden 
for  the  whole  debt,  because  the  executor  had  the  means  wherewith  to 
pay  and  discharge  the  debt.  This  was  held  to  be  the  law  in  Probate 
Court  v.  Merriam,  8  Vt.  234,  wherein  the  court  held  it  was  the  duty 
of  a  solvent  executor  or  administrator  to  inventory  and  account  for 
any  notes  or  obligations  which  the  deceased  held  against  him,  and 
which  were  due  and  payable  ;*  and  that  his  surety  on  his  bond  was 
liable  for  his  default  therein. 

This  rule  of  treating  the  debt  as  paid  to  the  executor  rests  whohy 
on  technical  grounds,  and  should  not  be  extended  so  as  to  work  in- 
justice. While,  upon  the  ground  of  policy,  it  may  be  well  to  hold  that 
the  executor  is  estopped  from  showing  he  cannot  collect  his  own  debt, 
and  that  his  debt  should  be  treated  as  paid  to  him  in  his  representative 
capacity  because  he  cannot  sue  himself,  yet  such  estoppel  should  not 
be  used  as  a  fact  from  which  the  ability  of  the  executor  to  pay  his 
debt  must  be  inferred,  or  as  establishing  the  fact  of  actual  money 
assets  of  the  estate  in  his  hands  to  the  amount  of  the  debt  for  which 
the  surety  must  stand  responsible.  Chief  Justice  Shaw,  in  Kinney  v. 
Ensign,  18  Pick.  (Mass.)  233,  says:  "The  holding  the  fact  of  a  debtor 
taking  administration  upon  the  estate  of  his  creditor  to  be  a  payment 
may  be  deemed  a  legal  fiction,  adopted  for  the  purposes  of  justice 
and  convenience,  as  well  as  from  considerations  of  policy,  and  calculat- 
ed generally  to  promote  justice;  but  such  legal  fiction  will  never  be 
allowed  to  go  so  far  as  to  work  wrong  and  injustice." 

Although  debts  of  every  description  due  to  the  testator  are  assets, 
yet  the  executor  is  not  to  be  charged  with  them  until  he  has  received 
the  money.  2  Williams,  Ex'rs,  1022.  The  general  rule  with  respect 
to  what  shall  be  assets  in  the  hands  of  an  executor  to  charge  him  is 
all  those  goods  and  chattels,  actions  and  commodities,  etc.,  which  were 
of  the  deceased  in  right  of  action  or  possession,  and  which,  after  his 

*  For  his  annloKoiis  duty  to  retiiin  his  sliare  of  the  estate  for  his  own  debts 
to  the  estate,  see  G  Am.  &  Eiig.  Ann.  Cas.  810,  note. 


Ch.    2)  TITLE   AND   POWERS  OF  EXECUTORS.  571 

death,  the  executor  gets  into  his  hands  as  duly  bclonqinq-  to  him  in 
right  of  his  executorship,  and  nothing  else  shall  be  said  to  be  assets  in 
the  hands  of  the  executor  to  make  him  chargeable.  2  Williams,  Ex'rs, 
1012 ;  Touch.  496. 

If  the  executor  is  not  chargeable  with  the  debts  as  assets  until  he 
has  received  the  money  thereon,  when  not  guilty  of  laches  he  should 
not  be  held  chargeable,  as  regards  the  liability  of  his  surety,  for  his 
own  indebtedness  beyond  his  actual  means  or  ability  to  pay ;  for  only 
to  that  extent  does  he,  by  his  appointment,  receive  money  from  him- 
self belonging  to  the  estate.  His  ability  to  pay  his  indebtedness  is  the 
extent  of  the  assets  in  his  hands  upon  his  obligation  to  the  deceased. 
The  surety,  by  signing  the  administration  bond,  has  aided  him  to  get 
possession  of  assets  from  his  indebtedness  only  to  the  extent  of  his 
ability  to  pay  it;  and  he  should  not  be  held  liable  for  a  greater  sum 
on  each  indebtedness,  unless  the  executor,  after  his  appointment,  be- 
comes able  to  meet  and  discharge  a  greater  sum. 

The  executor's  bond  is  conditioned  for  the  faithful  administration 
of  the  assets,  and  a  faithful  performance  of  the  duties  of  the  trust; 
and  the  surety  should  be  held  chargeable  only  according  to  the  terms 
of  the  bond  for  the  default  of  his  principal.  If,  at  the  time  the  surety 
assumes  responsibility,  the  executor  is  able  to  pay  his  debt  to  the  es- 
tate, or  afterwards,  during  the  settlement  of  the  estate,  he  becomes 
able  to  pay  it,  the  surety  is  responsible  for  it  as  assets.  The  executor's 
failure  to  account  for  his  debt,  when  he  has  the  power  and  means  to 
pay  it,  is  a  gross  violation  of  his  duty.  It  cannot  be  held  to  be  a  breach 
of  trust  for  the  executor  not  to  do  what  is  beyond  his  power  and  con- 
trol to  perform,  when  free  from  laches.  Where  the  executor  holds  a 
note  in  favor  of  the  testator  against  any  other  person  than  himself, 
which  is  uncollectible,  he  is  not  charged  with  it  in  his  administration 
account.  Upon  what  principle  should  there  be  a  distinction  made  in 
the  degree  of  fidelity  required  as  to  a  worthless  obligation  which  the 
deceased  held  against  his  executor,  so  far  as  relates  to  the  surety's 
liability?  The  law,  to  secure  fidelity  and  faithful  administration  of 
assets,  wisely  requires  a  bond  with  ample  sureties  for  the  faithful  per- 
formance of  the  trust,  and  makes  the  surety  responsible  for  any  failure 
of  the  executor's  fidelity.  If  the  inability  to  collect  a  note  against  an- 
other is  not  a  breach  of  duty,  why  should  the  inability  of  the  executor 
to  pay  his  own  indebtedness  work  a  breach  of  trust,  and  bring  respon- 
sibility upon  his  surety  beyond  the  executor's  actual  means  to  meet  his 
debt?  Both  debts  were  the  unfortunate  investments  of  the  deceased 
in  his  life-time,  and  both  should  be  governed  by  the  same  rule  in  meas- 
uring the  responsibility  of  the  surety.  There  is  no  more  ground,  under 
the  terms  of  the  bond,  for  compelling  the  surety  to  make  the  worthless 
debt  of  the  one  good  than  the  other. 

The  extension  of  the  legal  fiction  of  payment  so  as  to  make  the 
surety  liable  for  the  executor's  debt  beyond  his  means  to  pay,  when 
not  guilty  of  laches,  would  often  work  great  injustice  to  the  surety. 


572  PROBATE    AND    ADMINISTRATION.  (Part   3 

The  surety  ought  not  to  be  required  to  contribute  from  his  own  funds 
to  make  up  an  estate  for  the  deceased  which  he  in  fact  was  not  pos- 
sessed of  at  the  time  of  his  death.  It  is  true  the  executor  is  bound  to 
use  vigilance  and  diligence  in  pursuing  and  collecting  all  claims  due 
the  estate,  and  any  unnecessary  delay  which  results  in  the  loss  of  a 
claim  against  another  person,  or  in  the  loss  of  his  own  indebtedness, 
is  a  violation  of  his  duty,  for  which  the  surety  is  responsible ;  but,  in 
the  absence  of  laches,  we  think  the  surety  is  liable  upon  his  bond  for 
the  executor's  debt  only  to  the  extent  of  the  executor's  ability  to  pay 
it.  When  the  executor  is  unable  to  pay  his  debt,  it  is  his  duty,  in  ren- 
dering his  administration  account,  to  claim  credit  for  his  lack  of  means 
to  pay  his  debt,  for  the  protection  of  his  surety,  and  on  his  failure  to 
do  so  relief  will  be  granted  by  the  proper  tribunal.  Garber  v.  Com., 
7  Pa.  265 ;  In  re  Piper's  Estate,  15  Pa.  533 ;  Gottsberger  v.  Smith,  5 
Duer  (N.  Y.)  566. 

In  Harker  v.  Irick,  10  N.  J.  Eq.  269,  Chancellor  Williamson,  in  his 
opinion,  says:  "If  a  person  become  surety  for  one  as  administrator, 
who  at  the  time  is  a  debtor  to  the  estate,  and  is  insolvent,  and  is  never 
able  to  discharge  such  indebtedness,  such  surety  is  not  bound  for 
such  a  delinquency  of  his  principal.  He  is  only  bound  for  the  faith- 
ful performance  of  his  duties"  as  administrator.  If,  under  such  cir- 
cumstances, the  administrator  should,  in  the  settlement  of  his  account 
with  the  court,  charge  himself  with  the  debt,  and  the  account  should 
be  passed  in  such  a  shape  as  to  bind  the  surety  for  the  debt,  the  sure- 
ty would  be  relieved,  upon  application  to  the  proper  tribunal,  from 
such  responsibility.  It  would  be  fraud  upon  the  surety  to  ?xact  the 
debt  from  him,  whether  the  administrator  did  or  did  not  contemplate 
a  fraud." 

We  think  the  orator's  liability  as  surety  upon  Osgood's  executor's 
bond  rests  upon  the  rule  herein  laid  down,  supported  by  the  decisions 
of  the  courts  cited.  At  the  time  the  orator  assumed  responsibility  as 
surety,  Osgood  had  property  to  the  amount  of  only  $4,300  which  he 
could  have  applied  towards  the  extinguishment  of  his  indebt,edness 
to  the  estate.  He  had  no  more  when  he  rendered  his  administration 
account,  and  has  not  since  had.  The  executor  should  have  been  credit- 
ed in  his  account  with  the  excess  of  his  indebtedness  above  $4,300. 
This  would  have  shown  the  amount  of  actual  assets  in  his  hands  for 
distribution  to  be  $3,953.59,  for  which  the  orator,  as  surety,  was  re- 
sponsible to  the  general  legatees,  excepting  Osgood,  whose  legacy 
would  have  been  properly  canceled  by  a  corresponding  amount  of  the 
worthless  part  of  his  indebtedness.     *     *     * 

Cause  remanded,  with  a  mandate  that  a  decree  be  entered  for  the 
orator,  according  to  the  prayer  of  the  bill,  against  Osgood  and  wife, 
and  that  the  bill  be  dismissed  as  to  the  other  defendants,  with  costs-^** 

20  But  see  Bassett  v.  Fidelity  &  Deposit  Co.,  184  Mass.  210,  68  N.  E.  205,  100 
Am    St.  Rep.  552  (1903).     For  the  anthnril.ies  pro  ami  contra,  see  112  Am.  St. 


Ch.    2)  TITLE  AND   POWERS  OF  EXECUTORS.  573 


SECTION  4.— THE  POWER  OF  ALIENATION** 


CARTER  V.  MANUFACTURERS'  NAT.  BANK  OF  LEWISTON. 

(Supreme  Judicial  Court  of  Maine,  1S80.    71  Me.  448,  36  Am.  Rep.  338.) 

An  action  by  an  administrator  de  bonis  non  against  the  Manufac- 
turers' National  Bank  of  L,ewiston  for  the  conversion  of  shares  be- 
longing to  the  decedent,  transferred  on  the  books  of  the  bank  to  "John 
G.  Cook,  Executor."  The  executor  borrowed  from  the  bank  on  his 
note,  giving  the  stock  as  security.  The  money  was  loaned  by  the  bank 
on  the  statement  of  the  executor  that  it  was  required  in  the  settlement 
of  the  estate. 

Virgin,  J.  The  main  question  is  whether  the  bank  obtained  a 
valid  title  to  the  shares  of  stock  pledged  to  it  by  the  executor  as  col- 
lateral security  for  the  payment  of  his  note. 

The  interest  which  an  ^executor  as  such  has  in  the  personal  estate 
of  his  testator  is  not  the  absolute  title  of  an  owner,  else  it  might  be 
levied  on  for  his  personal  debts ;  but  he  holds  in  autre  droit,  as  the 
piinister  and  dispenser  of  the  goods  of  the  dead.  Went.  Off.  Ex'r 
(14th  Ed.)  196;  Pinchon's  Case,  9  Coke,  86b;  Dalton  v.  Dalton,  51 
Me.  171 ;  Weeks  v.  Gibbs,  9  Mass.  76 ;  Hutchins  v.  State  Bank,  12 
Mete.  (Mass.)  423.  As  soon  as  he  is  clothed  with  a  commission  from 
the  probate  court,  the  executor  is  vested  with  the  title  to  all  the  person- 
al effects  which  the  testator  possessed  at  the  instant  of  his  decease; 
but  the  title  is  fiduciary  and  not  beneficial  (Petersen  v.  Chemical  Bank, 
32  N.  Y.  21,  88  Am.  Dec.  298),  and  his  office  is  not  that  of  an  agent, 
but  of  a  trustee.  Dalton  v.  Dalton,  supra;  Sumner  v.  Williams,  8 
Mass.  198,  5  Am.  Dec.  83 ;  Shirley  v.  Healds,  34  N.  H.  407. 

As  a  necessary  incident  to  the  execution  of  the  will  and  the  adminis- 
tration of  the  estate,  the  power  to  dispose- of  the  personal  estate  is  giv- 
en to  the  executor.  And  no  general  proposition  of  law  is  better  estab- 
lished than  that  an  executor  has  an  absolute  control  over  all  the  per- 
sonal effects  of  his  testator.  Petersen  v.  Chemical  Bank,  supra;  1 
Wilhams,  Ex'rs  (6th  Am.  Ed.)  709;  2  Williams,  Ex'rs,  998;  1  Perry, 
Trusts,  §  225,  and  cases  in  notes.  And  this  rule  prevails  where  no 
statute  intervenes.    Rev.  St.  c.  64,  §  49. 

• 

Rep.  406.  note.  See,  also,  Wacbsmuth  v.  Penn  Mutual,  241  111.  409,  89  N.  E. 
787  (1909). 

In  In  the  Matter  of  Ablowich,  118  App.  Div.  626,  103  N.  Y.  Supp.  699  (1907), 
an  administrator  was  charged  with  the  indebtedness  of  his  firm  to  the  estate, 
although  his  letters  were  revoked  and  the  firm  obligations  were  turned  over 
to  and  accepted  by  his  successor. 

21  On  the  common-law  power  of  executors  and  administrators  over  personal 
estate,  see  78  Am.  St.  Rep.  179-183,  note,  192-196,  note.  On  the  authority  of 
one  of  several  executors  or  administrators,  see  127  Am.  St.  Rep.  381,  note. 


574  PROBATE    AND    ADMINISTRATION.  (Part   3 

While  it  is  the  duty  of  an  executor  to  use  reasonable  diligence  in 
converting  assets  into  money  for  the  general  purposes  of  the  will,  the 
law  permits  him  to  exercise  a  sound  discretion  as  to  the  time,  within 
a  limited  period,  when  he  will  sell.  And  high  authority  has  declared 
that  circumstances  may  exist  in  which  it  is  certainly  not  wrong  in  hnn, 
although  it  may  not  be  a  positive  duty,  to  make  advances  for  the  benefit 
of  the  estate  and  reimburse  himself  therefrom.  Munroe  v.  Holmes, 
13  Allen,  110.  If  he  may  advance  his  own  money  for  the  general 
purposes  of  the  will,  and  may  sell  the  personal  effects  for  the  like 
object,  it  is  difficult  to  see  why,  in  the  absence  of  any  prohibitory  pro- 
vision in  the  will,  he  may  not  mortgage  or  pledge  the  assets  for  the 
same  purpose;  and  the  great  weight  of  authority  so  holds.  2  Williams, 
Ex'rs,  1001,  and  cases  cited;  McLeod  v.  Drummond,  17  Ves.  154; 
Andrew  v.  Wrigley,  4  Brown,  Ch.  125. 

In  Earl  Vane  v.  Rigden,  5  Ch.  App.  663,  Lord  Hatherly  said :  "Lord 
Thurlow  expressed  his  opinion  clearly  to  be  that  the  executor  is  at 
liberty  either  to  sell  or  pledge  the  assets  of  the  testator.  Scott  v.  Ty- 
ler, 2  Dickens,  712,  725.  In  fact,  he  has  complete  and  absolute  con- 
trol over  the  property,  and  it  is  for  the  safety  of  mankind  that  it  should 
be  so;  and  nothing  which  he  does  can  be  disputed,  except  on  the 
ground  of  fraud  or  collusion  between  him  and  the  creditor."  And  Sir 
W.  M.  James,  in  the  same  case,  said :  "It  seems  to  be  settled  on  prin- 
ciple, as  well  as  by  authority,  that  an  executor  has  full  right  to  mort- 
gage as  well  as  sell ;  and  it  would  be  inconvenient  and  very  disastrous 
if  the  executor  were  obliged  immediately  to  convert  into  money  by 
sale  every  part  of  the  assets.  It  is  a  very  common  practice  for  an  ex- 
ecutor to  obtain  an  advance  from  a  banker  for  the  immediate  wants 
of  the  estate  by  depositing  securities.  It  would  be  a  strange  thing  if 
that  could  not  be  done."    See,  also,  3  Redf.  Wills,  c.  8,  §  32,  pi.  4  et  seq. 

In  considering  the  question  whether  an  executor  had  followed  a 
specific  power  in  a  will,  Chancellor  Buchner  made  the  general  re- 
mark: "It  is  certain  that  an  executor,  as  such,  has  no  power  to  pledge 
the  estate  of  his  testator  for  a  loan  of  money."  Ford  v.  Russell, 
Freem.  Ch.  (INIiss.)  42.  If  the  learned  chancellor  meant  that  an  ex- 
ecutor has  no  authority  to  pledge  the  assets  of  his  testator  for  a  con- 
temporaneous advance  of  money  for  the  use  of  the  estate — for  a  pur- 
pose connected  with  the  administration  of  the  assets — he  is  not  sus- 
tained by  the  great  current  of  modern  authority.  1  Perry,  Trusts,  270, 
and  cases  there  cited,  and  cases  supra. 

Although  the  general  proposition  mentioned  is  so  well  established, 
nevertheless,  like  most  others,  it  is  not  without  an  exception;  for 
while  it  is  of  the  greatest  importance  that  the  disposal  of  a  testator'= 
effects  should  be  made  reasonably  safe  to  the  purchaser,  still  it  is  the 
bounden  duty  of  the  executor  to  faithfully  appropriate  the  assets  to 
the  due  execution  of  the  will;  and  a  misapplication  thereof  is  a  breach 
of  duty  for  which  he  is  liable.  And  all  the  authorities  concur  in  hold- 
ing that,  if  the  purchaser,  mortgagee,  or  pledgee  know  or  have  notice 


Ch.    2)  TITLE  AND   POWERS   OF   EXECUTORS.  575 

that  the  transfer  to  him  is  made  for  the  purpose  of  misapplying  the  as- 
sets, his  title  cannot  be  upheld,  and  he  thereby  becomes  involved,  and 
is  made  liable  to  all  persons  beneficially  interested  in  the  will,  except 
the  executor.  2  Williams,  Ex'rs,  1002,  and  cases  in  note  X ;  1  Perry, 
Trusts,  270,  and  cases  in  note  1;  1  Story,  Eq.  Jur.  §§  400,  402,  and 
cases ;  McLeod  v.  Drummond,  17  Ves.  153,  where  the  cases  are  critic- 
ally reviewed  by  Lord  Elden;  Collinson  v.  Lister,  7  De  Gex,  M.  & 
G.  633 ;  Yerger  v.  Jones,  16  How.  30,  37,  38,  14  L.  Ed.  832 ;  Hutchins 
V.  State  Bank,  supra. 

It  also  now  seems  to  be  well  settled,  in  equity  at  least,  that  an  ex- 
ecutor can  make  no  valid  sale  or  pledge  of  his  testator's  effects  for  the 
payment  or  security  of  his  own  private  debt  (2  Sugd.  Vend.  372,  and 
cases  in  note  "o";  1  Perry,  Trusts,  270,  and  cases  in  note  3;  2  Wil- 
liams, Ex'rs,  1004,  and  cases  in  note  "d"),  on  the  ground  res  ipsa  lo- 
quitur, giving  the  purchaser,  mortgagee,  or  pledgee  such  notice  of  the 
misapplication  as  necessarily  to  involve  him  in  the  breach  of  duty. 

Chancellor  Kent  concludes  a  critical  examination  of  the  cases  which 
had  then  been  decided  as  follows-:  "I  have  thus  looked  pretty  fully 
into  the  decisions  of  a  purchaser  from  an  executor  of  the  testator's 
assets,  and  they  all  agree  in  this:  that  the  purchaser  is  safe  if  he  is 
no  party  to  any  fraud  in  the  executor,  and  has  no  knowledge  or  proof 
that  the  executor  intended  to  misapply  the  proceeds,  or  was  in  fact  by 
the  very  transaction  applying  them  to  the  extinguishment  of  his  own 
private  debt.  The  great  difficulty  has  been  to  determine  how  far  the 
purchaser  dealt  at  his  peril,  when  he  knew  from  the  very  face  of  the 
proceeding  that  the  executor  was  applying  the  assets  to  his  own  pri- 
vate purposes,  as  the  payment  of  his  own  debt.  The  later  and  better 
doctrine  is  that  in  such  a  case  he  does  buy  at  his  peril,  but  that,  if  he 
has  no  such  proof  or  knowledge,  he  is  not  bound  to  inquire  into  the 
state  of  the  trust,  because  he  has  no  means  to  support  the  inquiry,  and 
he  may  safely  repose  on  the  general  presumption  that  the  executor  is 
in  the  due  execution  of  his  trust."  Field  v.  Schieffelin,  7  Johns.  Ch. 
(N.  Y.)  150,  160,  11  Am.  Dec.  441. 

So  Chief  Judge  Taney  said:  "An  executor  may  sell  or  raise  money 
on  the  property  of  the  deceased,  in  the  regular  execution  of  his.  du- 
ty; and  the  party  dealing  with  him  is  not  bound  to  inquire  into  his 
object,  nor  liable  for  his  misapplication  of  the  money.  *  *  *  But 
it  is  equally  clear  that  if  a  party  dealing  with  an  executor  has  at  the 
time  reasonable  ground  for  believing  that  he  intends  to  misapply  the 
money,  or  is,  in  the  very  transaction,  applying  it  to  his  -own  private  use, 
the  party  so  dealing  is  responsible  to  the  persons  injured."  Lowry  v. 
Commercial  &  Farmers'  Bank,  Taney,  310,  330,  Fed.  Cas.  8,581. 

The  law  recognizes  a  distinction  between  an  ordinary  trustee  and  an 
executor.  The  former  has  possession  for  custody,  and  the  latter  for 
administration.  The  latter  has  a  necessary  incidental  power  of  dis- 
posal which  the  former  does  not;  and,  as  a  consequence,  when  one 
purchases  of  the  latter  stocks  or  other  securities  bearing  on  their  face 


576  PROBATE    AND    ADMINISTRATION.  (Part   3 

the  revelation  of  a  trust,  he  may  do  so  safely  in  the  absence  of  notice 
or  knowledge  of  any  intended  breach  of  trust  on  the  part  of  the  ex- 
ecutor; but,  if  he  purchases  like  trust  property  of  an  ordinary  trus- 
tee, the  law  imposes  upon  him  the  duty  of  inquiring  into  the  right  of 
the  trustee  to  change  the  securities.  Duncan  v.  Jaudon,  15  Wall.  165, 
175,  21  L.  Ed.  142;  Shaw  v.  Spencer,  100  Mass.  388,  97  Am.  Dec. 
107,  1  Am.  Rep.  115;  Pendleton  v.  Fay,  2  Paige  (N.  Y.)  205;  Atkin- 
son V.  Atkinson,  8  Allen  (Mass.)  15;  1  Perry,  Trusts,  §  225,  p.  271. 

In  the  case  at  bar  the  certificate  of  stock  was  changed  by  the  cor- 
poration, and  issued  to  Cook,  executor,  thus  revealing  to  the  bank  the 
trust.  But  this  alone  would  not  imperil  the  bank  in  the  transaction, 
for  the  executor  had  the  presumptive  right  to  sell  or  pledge  the  stock. 
But  the  executor  gave  to  the  bank  his  note,  for  the  security  of  which 
the  pledge  was  made.  The  note  could  not  be  collected  against  the  es- 
tate, for  it  was  the  personal  note  of  the  executor.  Davis  v.  French, 
20  Me.  21,  37  Am.  Dec.  36.  He  could  not  create  a  debt  in  that  man- 
ner against  the  estate.  And  if  the  money  was  thereby  procured  for 
his  own  private  use,  and  the  bank  knew  it  at  the  time,  the  transfer  of 
the  stock  would  be  a  devastavit,  and  could  not  be  upheld.  If  the  note 
had  been  given  to  the  bank  for  a  private  debt  due  to  the  bank  from 
the  executor,  created  before  or  during  his  executorship,  but  independ- 
ent thereof,  it  would  come  within  the  principle  of  the  numerous  cases 
before  cited,  where  the  transaction  itself  would  speak,  and  conclude 
the  bank.  But,  if  given  as  a  voucher  for  money  obtained  for  a  legit- 
imate purpose  connected  with  a  bona  fide  administration  of  the  will, 
then,  though  the  executor  alone  was  made  liable  for  its  payment,  the 
transaction  would  be  legitimate,  and  the  estate  would  have  no  reason 
for  complaint.  The  case  finds  "that  the  money  was  loaned  in  good 
faith  by  the  bank,  and  upon  the  statement  made  by  Cook  that  the  same 
was  wanted  in  the  settlement  of  the  estate."  The  presumption  is  that 
he  was  acting  faithfully.  There  is  no  evidence  to  the  contrary,  and 
the  presumption  must  stand.  The  doctrine  of  this  case  is  recognized 
in  Pettingill  v.  Pettingill,  60  Me.  412,  425. 

Plaintiff  nonsuit.^* 

22  See  Lyman  v.  National  Bank  of  the  Republic.  181  Mass.  437,  63  N.  B.  923 
(1902) ;  Ilemmy  v.  Hawkins,  102  Wis.  56,  78  N.  W.  177,  72  Am.  St.  Rep.  863 
(1899). 

"It  is  a  general  rule  of  law  and  equity  that  an  executor  has  an  absolute 
power  of  disposal  over  the  personal  effects  of  his  testator,  and  they  cannot 
be  followed  by  creditors  nor  legatees  into  the  bands  of  the  alienee.  This  re- 
sults from  the  fact  that  in  many  instances  the  executor  must  sell  in  order  to 
Iterform  bis  duty  in  paying  debts,  etc. :  and  no  one  would  deal  with  bim  if 
liable  afterwards  to  be  called  to  an  account.  Coexecutors  are  regarded  in  law 
as  an  individual  person ;  and  the  acts  of  any  one  of  them  in  respect  to  the  ad- 
ministration of  the  effects,  are  deemed  to  be  the  acts  of  all ;  as  where  one  re- 
leases a  debt  or  settles  an  account  of  a  person  with  the  deceased,  or  surren- 
ders a  term,  or  sells  the  goods  and  chattels  of  the  estate,  his  act  binds  the 
others.  An  exception  to  this  general  power  will  be  found  in  those  cases  only 
when  collusions  exist  between  the  executor  and  purchaser.  That  the  exec- 
utor may  waste  the  money  is  not  alone  sufficient  to  invalidate  the  sale;  it  must 


Ch.   2)  TITLE   AND   POWERS  OF   EXECUTORS.  577 

HILL  V.  SIMPSON. 

(High  Court  of  Chancery,  1802.     7  Ves.  152.) 

John  Smith  by  his  will,  dated  the  18th  of  January,  1785,  among 
other  legacies,  gave  to  Jane  Pearson  the  sum  of  £200  to  be  paid  to  her 
immediately,  or  as  soon  as  possible  on  the  death  or  marriage  of  his 
wife  Elizabeth  Smith ;  and  he  left  Charles  Rushworth  £50,  to  be  paid 
at  the  death  of  his  said  wife;  and  he  appointed  John  Lush  and  his 
said  wife  EHzabeth  Smith,  executors.  The  testator  died  on  the  23d  of 
May,  1785 ;  and  his  widow  and  Lush  proved  the  will.  Lush  died  on 
the  26th  of  January,  1796;  and  on  his  death,  Elizabeth  Smith  pos- 
sessed herself  of  all  the  personal  estate  of  her  late  husband. 

Elizabeth  Smith  by  her  will,  made  in  1790,  directed  all  her  debts, 
funeral  expenses,  and  the  expenses  of  the  executors,  to  be  paid ;  and, 
subject  thereto  and  to  her  late  husband's  will,  she  gave,  devised,  and 
bequeathed,  all  and  every  the  moneys,  real  and  personal  estates,  secu- 
rities for  money,  goods,  chattels,  and  all  other  her  estate  and  effects, 
to  her  nephews  Joseph  Simpson,  William  Thorley,  and  Henry  Wright, 
and  to  the  survivors  and  survivor  of  them,  their  and  his  executors  and 
administrators ;  upon  trust  to  convey  the  freehold  property,  consisting 
of  two  messuages,  to  her  two  nephews  John  Simpson  and  James 
Simpson ;  with  remainder  over  to  Joseph  Simpson ;  and  after  giving 
some  legacies  she  appointed  Joseph  Simpson,  Thorley,  and  Wright, 
her  executors. 

Elizabeth  Smith  died  on  the  5th  of  April,  1797;  leaving  Joseph 
Simpson  her  heir  at  law ;  who  alone  proved  her  will ;  and  possessed 
himself  of  her  real  and  personal  estates,  and  of  part  of  the  personal 
estate  of  John  Smith.  At  her  death  there  were  standing  in  the  name 
of  John  Smith  in  the  books  of  the  Bank  of  England  £50  five  per  cent, 
navy  annuities ;  £275  four  per  cent,  consolidated  annuities ;  £60  short 
annuities;  and  £550  three  per  cent,  reduced  annuities;  which  funds 
Simpson  transferred  to  MoflFatt  &  Co.,  his  bankers,  as  a  security  foi 
such  sums  as  he  then  owed,  or  might  afterwards  owe  them.  In  1798  a 
commission  of  bankruptcy  issued  against  him. 

further  appear  that  the  purchaser  participated  in  the  devastavit  or  breach  of 
duty  in  the  executor.  *  *  *  'The  executor  has  the  right  to  sell  and  transfer 
and  one  who  buys  of  him  in  good  faith,  and  pays  in  money  the  price  agreed 
upon,  is  not  responsible  for  the  application  of  the  purchase  money.'  Per  Hunt, 
J..  Leitch  et  al.  v.  Wells  et  al.,  48  N.  Y.  585.  Letters  of  administration  are 
always  sufficient  evidence  of  authority  to  transfer,  because  a  sale  and  trans- 
fer of  stock  is  in  the  line  of  the  duty  of  an  administrator.  *  *  *  The  law 
oasts  no  duty  upon  a  purchaser  to  ascertain  if  the  trusted  executor  of  th" 
decedent's  will  is  mismanaging  the  estate  in  fraud  of  creditors  or  legatees.' 
Trunkey,  J.,  in  Wood's  Appeal,  92  Pa.  379,  391-393,  37  Am.  Rep.  694  (1880). 

On  the  validity  of  an  alienation  by  an  executor  de  son  tort,  see  1  Woerner'* 
Am.  Law  of  Admin.  (2d  Ed.)  *426,  427.  §  197. 

On  the  power  of  an  executor  to  sell  under  a  will  after  his  discharge,  see 
Starr  v.  Willoughby,  218  111.  485,  75  N.  E.  1029,  2  L.  R.  A.  (N.  S.)  623  (1905). 
See,  also,  2  L.  R.  A.  (N.  S.)  623,  note. 
CosT.WrLLS— 37 


578  PROBATE   AND    ADMINISTRATION.  (Part   3 

Thomas  Hill  married  Jane  Pearson ;  and  they  and  Rushworth,  who 
was  then  an  infant,  filed  the  bill  against  Simpson  and  Wright,  Thor- 
ley  being  dead,  and  against  the  assignees  and  the  bankers ;  praying, 
that  it  may  be  declared,  that  the  funds  transferred  by  Simpson  to  the 
bankers  are  liable  to  the  legacies  of  the  plaintiffs,  etc. 

The  defendants  Moffatt  &  Co.  by  their  answer  set  up  the  advances 
made  by  them  and  the  transfer  of  the  annuities  and  stocks  to  them  by 
the  defendant  Simpson  on  May  11,  1797,  to  secure  past  and  future  ad- 
vances by  them  to  him.  They  denied,  that  they  knew,  or  suspected, 
that  the  funds  were  not  at  the  time  of  the  transfer  the  absolute  prop- 
erty of  Simpson  as  executor  or  devisee  of  Elizabeth  Smith;  or  that 
they  were  part  of  the  personal  estate  of  John  Smith ;  on  the  contrary 
they  believed  they  were  Simpson's  own  property ;  and  he  represented 
to  them  that  he  was  absolutely  entitled  thereto,  subject  only  to  an  an- 
nuity of  £20  to  Elizabeth  Smith's  sister  during  her  life,  and  to  a  few 
very  small  legacies;  that  he  had  full  right  to  dispose  thereof;  and 
would  have  disposed  but  for  the  low  price  of  the  funds;  which  he 
expected  would  rise.  They  also  stated,  that  they  did  not  know  any  of 
the  legacies  of  John  Smith  to  the  plaintiffs  or  any  other  person  were 
unpaid. 

The  answer  farther  stated  that  on  the  21st  of  June,  1798,  when 
Sim.pson  became  bankrupt,  he  was  indebted  to  defendants  on  the  bal- 
ance of  accounts  in  il,435  19s.  6d. 

The  answer  was  replied  to ;   but  the  plaintiffs  did  not  go  into  evi- 

■Jence. 

The  Master  of  the  Roles.  [Sir  Wieeiam  Grant]. '«  The  ques- 
tion is  whether  the  plaintiffs,  legatees,  can  follow  the  assets  in  the 
hands  of  third  persons,  to  whom  the  executor  has  transferred  them. 
There  is  no  evidence  in  the  cause  but  the  answer.  I  cannot  therefore 
infer  anything  against  the  defendants,  which  they  do  not  admit ;  for 
it  was  in  the  power  of  the  plaintiffs  to  procure  an  explicit  admission 
or  denial  of  every  fact,  within  the  knowledge  of  the  defendants.  I 
cannot  assume,  that  they  ever  saw  Mrs.  Smith's  will ;  though  Simpson 
says,  he  was  to  produce  it  to  them ;  for  they  do  not  say,  they  ever  did 
see  it.  Without  doubt  the  plaintiffs  are  entitled  to  a  decree  against 
the  executor,  now  a  bankrupt ;  and  his  assignees  are  parties. 

Several  well-known  cases  were  referred  to  on  both  sides.  The  de- 
fendants rely  upon  Nugent  v.  Gifford,  1  Atk.  463,  Mead  v.  Lord 
Orrerv,  3  Atk.  235,  and  Whale  v.  Booth,  4  Term  Rep.  B.  R.  625,  note, 
as  establishing  the  absolute  right  of  the  executor  to  bind  the  assets 
by  any  disposition;  at  least,  where  there  is  no  actual  fraud  in  the 
party  taking  under  it.  The  other  cases.  Humble  v.  Bill,  2  Vern.  444, 
Crane  v.  Drake,  2  Vern.  616,  Farr  v.  Newman,  4  Term  Rep.  B.  R. 
621,  Bonney  v.  Ridgard,  2  Bro.  C.  C.  438,  and  Andrew  v.  Wrigley, 
4  Bro.  C.  C.  125,  are  relied  on  by  the  plaintiffs  as  showing  that  there 

28  The  Btatement  of  facts  is  abbreviated. 


Ch.    2)  TITLE  AND   POWERS  OP  EXECUTORS.  579 

are  limits  to  that  rule,  which  limits  they  contend  are  here  transgressed. 
Though  it  is  difficult  to  reconcile  all  the  doctrine  and  dicta,  that  are 
to  be  found  in  the  cases,  the  decisions  do  not  appear  to  me  to  be  incon- 
sistent. It  is  true,  that  executors  are  in  equity  mere  trustees  for  the 
performance  of  the  will ;  yet  in  many  respects  and  for  many  purposes 
third  persons  are  entitled  to  consider  them  absolute  owners.  The 
mere  circumstance,  that  they  are  executors,  will  not  vitiate  any  trans- 
action with  them ;  for  the  power  of  disposition  is  generally  incident, 
being  frequently  necessary,  and  a  stranger  shall  not  be  put  to  examine, 
whether  in  the  particular  instance  that  power  has  been  discreetly  exer- 
cised. But  from  the  proposition,  that  a  third  person  is  not  bound  to 
look  to  the  trust  in  every  respect  and  for  every  purpose,  does  it  follow, 
that,  dealing  with  the  executor  for  the  assets,  he  may  equally  look  up- 
on him  as  absolute  owner,  and  wholly  overlook  his  character  as  trus- 
tee, when  he  knows  the  executor  is  applying  the  assets  to  a  purpose 
wholly  foreign  to  his  trust?  No  decision  necessarily  leads  to  such  a 
consequence. 

In  Nugent  v.  Gifford  it  appears  from  the  register's  book,  as  stated 
in  Andrew  v.  Wrigley,  though  not  in  the  report  in  Atkyns,  that  the 
testator  died  two  years  before  the  executor  and  residuary  legatee 
made  the  assignment,  that  was  impeached.  At  least  therefore  there 
was  room  to  suppose,  that  the  executor  might  in  that  period  by  advan- 
ces on  account  of  the  trust  have  entitled  himself  to  reimbursement  out 
of  the  assets ;  but  even  so  explained,  the  late  Master  of  the  Rolls 
would  not  go  farther  than  to  say,  that  case  might  be  rightly  deter- 
mined, and  in  Scott  v.  Tyler,  Lord  Thurlow  said  (2  Bro.  C.  C.  477), 
it  was  difficult  to  reconcile  it  with  Crane  v.  Drake.  In  Mead  v.  Lord 
Orrery,  Lord  Hardwicke,  instead  of  stating  shortly  and  generally,  that 
an  executor  has  the  absolute  right  to  dispose,  as  he  pleases,  of  the 
testator's  property,  enters  into  all  the  circumstances  to  show,  that  in 
that  case  the  assignment  ought  to  stand;  that  it  was  made  several 
years  after  the  testator's  death ;  that  it  was  not  the  case  of  a  sole  ex- 
ecutor disposing  for  his  own  benefit,  but  of  three  executors,  two  not 
interested,  one  a  residuary  legatee;  that,  as  he  was  one  of  the  execu- 
tors, and  in  his  banking  shop  the  money  affairs  were  transacted,  he 
might  have  been,  as  he  was  recited  to  be,  the  sole  owner  of  the  mort- 
gage. He  might  be  a  creditor  for  that  sum  by  advances  made  by  him; 
or  it  might  have  been  released  and  assigned  to  him  by  the  other  exec- 
utors, as  his  share  of  the  residuary  estate.  Under  all  those  circum- 
stances perhaps  it  would  have  been  hard  to  have  deprived  the  assignee 
of  the  benefit;  and  yet  Lord  Kenyon  in  Bonney  v.  Ridgard,  with  an 
accurate  note  of  which  I  have  been  favored  by  Mr.  Cox,  declared  his 
dissent  from  that  case,  and  declared  he  should  have  given  the  opposite 
decision ;  and  yet  there  was  nothing  like  express  fraud,  and  no  motive 
for  it,  in  order  to  obtain  that  assignment ;  for  Mead  the  younger  was 
not  indebted,  but  was  only  to  give  security  for  what  might  come  to 


580  PROBATE    AND    ADMINISTRATION.  (Part   3 

him  afterwards  as  receiver,  and  he  used  the  mortgage  for  that  pur- 
pose. It  was  indifferent  to  them,  whether  they  had  that  or  any  other 
security.  But  Lori  Kenyon  says,  that,  if  there  is  either  express  or 
imphed  fraud,  the  purchaser  is  bound.  In  Whale  v.  Booth,  though 
that  case  seems  overruled  by  Farr  v.  Newman,  stress  was  laid  upon 
the  circumstance,  that  the  testator  had  been  dead  three  years ;  and 
Lord  Mansfield  says :  "If  the  executors  paid  all  demands,  as  in  that 
time  they  might  have  done,  the  assets  belong  to  them." 

Those  three  cases  for  the  defendants  are  in  some  degree  impeached 
in  subsequent  decisions.  But,  supposing  they  were  not  impeached, 
there  is  nothing  in  any  of  them  excluding  the  possibility  of  the  execu- 
tor having  acquired  on  the  execution  of  the  trust,  a  right  to  appropri- 
ate to  himself  the  assets.  But  in  this  instance  the  assignment  was 
made  in  less  than  a  month  after  the  death  of  Mrs.  Smith.  There  is  not 
therefore  the  least  ground  for  the  presumption  of  right  acquired  to 
the  assets  of  Mr.  or  Mrs.  Smith  by  payments  made  in  that  short  inter- 
val on  account  of  either  estate.  It  is  not  pretended,  it  was  to  satisfy 
any  claim  on  either  estate;  for  the  express  purpose  appears  to  have 
been  to  secure  a  debt  of  his  own,  which  he  already  owed  to  the  bank- 
ers, and  other  advances  they  were  to  make  by  taking  up  bills  of  his, 
then  actually  outstanding.  They  had  distinct  notice  therefore,  that 
the  money  was  not  to  be  applied  to  any  demand  upon  either  estate; 
but  the  assets  were  to  be  wholly  applied  to  the  private  purpose  of  the 
executor.  Allowing  every  case  to  remain  undisturbed,  does  it  follow 
from  any,  that  an  executor  in  the  first  month  after  the  testator's  death 
can  apply  the  assets  in  payment  of  his  own  debt,  and  that  a  creditor 
is  perfectly  safe  in  so  receiving  and  applying  them,  provided  he  ab- 
stains from  looking  at  the  will,  which  would  show  the  existence  of  un- 
satisfied demands?  I  am  for  the  moment  keeping  out  of  sight  the 
representation  made  by  Simpson,  and  supposing  the  question  to  be, 
whether  an  executor  may  thus  deal  and  be  dealt  with ;  and  it  is  clear, 
no  rule  of  justice  permits,  or  of  convenience  requires,  that  he  should 
have  this  unbounded  power.  Though  it  may  be  dangerous  at  all  to 
restrain  the  power  of  purchasing  from  him,  what  inconvenience  can 
there  be  in  holding,  that  the  assets,  known  to  be  such,  should  not  be 
applied  in  any  case  for  the  executor's  debt,  unless  the  creditor  could 
be  first  satisfied  of  his  right.  It  may  be  essential,  that  the  executor 
should  have  the  power  to  sell  the  assets;  but  it  is  not  essential,  that 
he  should  have  the  power  to  pay  his  own  creditor,  and  it  is  not  just, 
that  one  man's  property  should  be  applied  to  the  payment  of  another 
man's  debt. 

But  the  question  is,  not,  whether  the  rule  is  now  to  be  made  more 
strict,  but  whether  general  justice  and  convenience  require  it  to  be 
relaxed  beyond  all  former  precedent.  I  should  hesitate  to  go  so  far 
as  other  cases  have  gone ;  but  this  would  go  much  farther  than  any. 
If  the  second  point  in  Scot:  v.  Tyler  had  received  the  decision  which 


Ch.    2)  TITLE   AND   POWERS  OF  EXECUTORS.  581 

it  was  generally  supposed  would  have  been  given  ^*  it  would  be  an  au- 
thority far  beyond  what  these  plaintiffs  want;  for  in  that  case  the  ex- 
ecutrix had  disposed  of  .the  River  Lee  bonds  four  years  after  the  death 
of  the  testator.  The  bankers  swore  they  knew  nothing  of  the  will ; 
and  they  believed  the  bonds  her  own  property,  not  that  of  the  testator. 
If  that  case  had  been  decided  against  the  bankers,  it  would  have  fur- 
nished a  stronger  authority  than  is  necessary  for  these  plaintiffs. 

Hitherto  I  have  supposed  the  executor  pretending  on  other  author- 
ity than  as  executor,  and  that  the  other  defendants  relied  solely  upon 
his  authority  in  that  character.  But  the  truth  is,  it  was  not  upon  his 
legal  authority  as  executor  that  they  relied;  but  they  proceeded,  as 
they  state,  upon  the  faith  of  his  representation,  by  which  they  were 
induced  to  believe,  that  the  property  he  assigned  to  them  was  actually 
his  own,  as  the  testatrix  had  left  him  everything,  subject  only  to  £20  a 
year,  and  a  few  small  legacies.  This  representation  is  partly  true, 
partly  false.  He  was  her  residuary  legatee,  and  it  is  taken  for  grant- 
ed on  all  sides,  that  she  had  a  right  to  dispose  of  this  property ;  but 
he  was  subject  to  something  more  than  £20  a  year,  and  some  trifling 
legacies,  viz.,  the  claims  under  her  husband's  will.  This  they  would 
have  seen,  if  they  had  looked  at  her  will,  instead  of  taking  his  repre- 
sentation. They  would  have  seen,  that  he  had  no  right  to  assign  the 
stock,  till  the  claims  under  that  will  were  satisfied,  and  that  some  of 
those  claims  were  unsatisfied.  Common  prudence  required,  that  they 
should  look  at  the  will,  and  not  take  the  debtor's  word  as  to  his  right 
under  it.  If  they  neglect  that,  and  take  the  chance  of  his  speaking  the 
truth,  they  must  incur  the  hazard  of  his  falsehood.  The  rights  of  third 
persons  must  not  be  affected  by  their  negligence.  I  do  not  impute  to 
them  direct  fraud ;  but  they  acted  rashly,  incautiously,  and  without 
the  common  attention  used  in  the  ordinary  course  of  business,  the  ref- 
erence in  the  will  of  Mrs.  Smith  to  the  will  of  her  husband  making  it 
the  same,  as  if  a  legatee  of  her  own  was  disappointed  by  this.  It  was 
gross  negligence  not  to  look  at  the  will,  under  which  alone  a  title  could 
be  given  to  them.  It  was  not  necessary  to  use  any  exertion  to  obtain 
information,  but  merely  not  to  shut  their  eyes  against  the  information, 
which  without  extraordinary  neglect  they  could  not  avoid  receiving. 
No  transaction  with  executors  can  be  rendered  unsafe  by  holding,  that 
assets  transferred  under  such  circumstances  may  be  followed. 

For  the  defendants  it  is  objected,  that  the  plaintiffs  were  guilty  of 
laches  in  not  taking  steps  to  secure  their  legacies  in  the  life  of  Mrs. 
Smith.  But  one  was  an  infant,  when  the  bill  was  filed,  and  his  legacy 
was  not  payable  till  her  death;  and  though  the  plaintiff  Hill  might 
have  filed  a  bill,  it  was  not  gross  negligence  not  to  do  so  for  so  small 
an  object.    There  was  no  reason  to  think  the  fund  was  in  danger;   and 

2  4  It  has  since  appeared  that,  though  that  point  ended  in  a  compromise, 
Lord  Thurlow  had  formed  his  judgment  upon  it  against  the  banliers.  See  2 
Dick.  724.—  Rep. 


582  PROBATE    AND    ADMINISTRATION.  (Part    3 

upon  inquiry  she  would  have  found  stock  sufficient  left  to  answer  her 
legacy.  Upon  the  whole  I  am  of  opinion,  these  funds  are  liable  to  an- 
swer the  plaintiffs'  demands. 


TAYLOR  V.  HAWKINS. 

(High  Court  of  Chaucery,  1803.     8  Ves.  209.) 

Richard  Hawkins,  being  possessed  of  certain  leasehold  premises  at 
Rotton  Park,  Birmingham,  subject  to  a  mortgage  to  Mary  Dalton,  by 
his  will,  dated  the  6th  of  January,  1790,  bequeathed  the  mortgaged 
premises  and  other  leasehold  estates  to  his  son  William  Hawkins,  to 
hold  to  him,  his  executors,  etc.,  for  the  residue  of  the  terms,  subject 
to  an  annuity  of  il5  to  his  son  Richard  Hawkins  for  twenty  years,  if 
he  should  so  long  live ;  and  in  case  his  said  son  should  die  before  the 
expiration  of  that  term,  then  to  the  payment  of  the  said  sum  of  il5 
for  the  remainder  of  the  twenty  years  to  his  (the  testator's)  wife  for 
the  use  of  his  children,  Sarah,  Mary,  and  George  Hawkins;  and  he 
appointed  his  wife  and  his  son  William  executors. 

Richard  Hawkins,  the  testator,  died  in  November,  1792.  The  exec- 
utors proved  the  will.  William  Hawkins  being  engaged  in  trade  in 
partnership  with  Thomas  and  John  Hawkins  became  indebted  to  the 
plaintiffs  as  bankers  to  the  amount  of  i2,000 ;  and  in  June,  1793,  they 
executed  a  bond  in  the  penal  sum  of  £3,000 ;  and  also  by  indenture 
of  mortgage,  dated  the  24th  of  June,  1793,  William  Hawkins  assigned 
the  premises  at  Rotton  Park  to  the  plaintiffs,  subject  to  the  mortgage 
to  Mary  Dalton,  and  to  the  annuity  of  £15  under  the  will  of  Richard 
Hawkins,  and  to  a  proviso  for  redemption  on  payment  of  £1,500  and 
interest,  and  all  other  sums  to  be  advanced  by  the  plaintiffs. 

In  October,  1796,  William  Hawkins  and  his  partners  became  bank- 
rupts. In  March,  1798,  by  consent  of  all  parties  the  mortgaged  prem- 
ises were  sold  for  £1,600.  Upon  that  occasion  James  Reynolds  in- 
formed the  purchaser,  that  he  was  a  creditor  of  Richard  Hawkins 
the  elder,  by  a  bond,  dated  the  20th  of  July,  1784,  in  the  principal 
sum  of  £300,  and  gave  notice  not  to  pay  his  purchase  money. 

The  bill  filed  by  Taylor  and  his  partners,  Taylor  being  also  adminis- 
trator of  Mary  Dalton,  prayed  an  account  of  the  personal  estate  of  the 
testator  Richard  Hawkins;  that  the  purchaser  may  pay  his  purchase 
money,  and  that  the  purchase  money  may  be  applied  in  satisfaction 
of  the  mortgages;  and  that  the  defendant  Reynolds  may  be  decreed 
not  to  have  any  lien  or  claim  upon  the  purchase  money  in  preference 
to  the  plaintiffs. 

The  defendant  Reynolds  by  his  answer  insisted  upon  his  bond  for 
money  lent;  and  stated  frequent  applications  to  the  executors  before 
the  bankruptcy.  He  claimed  a  balance  of  £452  8s.  lOd.  as  due  upon 
the  bond,  after  deducting  a  sum  of  £94   Is.  received  from  the  sale  of 


Ch.    2)  TITLE  AND   POWERS  OP  EXECUTORS.  '^^^ 

leasehold  premises  mortgaged  to  him  as  an  additional  security.  He 
insisted,  that  the  surplus  of  the  purchase  money  after  satisfying  Mrs. 
Dalton's  mortgage  ought  to  be  applied  in  satisfaction  of  what  remains 
due  on  his  bond  in  preference  to  the  mortgage  to  the  plaintififs,  espe- 
cially as  such  mortgage  was  executed,  not  for  the  purpose  of  raising 
any  money  to  discharge  the  debts  of  the  testator,  but  only  to  secure 
the  payment  of  debts  personally  incurred  by  William  Hawkins  and 
his  partners  with  the  plaintiffs  in  the  course  of  their  trade.  He  denied 
all  fraud  and  collusion  with  Hawkins,  and  insisted  that  he  is  a  bona 
fide  creditor,  and  ought  to  be  paid  out  of  the  leasehold  premises,  as 
being  the  assets  of  Richard  Hawkins,  in  preference  to  the  plaintiffs' 
demand. 

The  Master  of  the  Rolls  [Sir  William  Grant].  I  do  not  rec- 
ollect any  case,  in  which  the  property  was  specifically  bequeathed  to 
the  executor ;  but  the  person,  to  whom  it  has  been  specifically  given, 
has  generally  been  the  party  complaining.  In  this  case  there  is  not 
enough  in  this  answer  to  ground  an  inquiry;  if  not,  there  is  nothing 
to  stand  upon.  There  must  be  some  foundation  for  an  inquiry;  as  if 
he  had  said,  he  believed,  they  knew,  there  were  debts  unpaid.  The 
decree  must  therefore  be  according  to  the  prayer  of  the  bill.^" 


LESSING,  MAYER  &  CO.  v.  VERTREES. 

(Supreme  Court  of  Missouri,  1862.    32  Mo.  431.) 

Henry  Binswanger,  as  administrator  of  Solomon  Binswanger,  de- 
ceased, had  sold  the  goods  of  the  intestate,  and  taken  in  payment  the 
notes  of  the  defendants,  Vertrees  et  al.,  payable  to  himself  as  adminis- 
trator, and  upon  such  notes,  upon  default  of  payment,  had  obtained 
judgment.  The  plaintiffs,  having  obtained  judgment  against  Henry 
Binswanger,  issued  execution  and  summoned  the  defendants,  Ver- 
trees et  al.,  as  garnishees  of  said  Henry.  The  garnishees  answered, 
setting  up  the  purchase  of  the  goods  and  giving  of  the  notes  to  Henry 
as  administrator,  and  concluded  by  denial  of  all  indebtedness  to  said 
Henry.  Issue  was  taken  by  the  plaintiffs  upon  the  answer,  and  the 
facts  submitted  to  the  court,  which  held  that  the  garnishees  were  not 
liable  as  debtors  of  Henry  Binswanger,  and  gave  judgment  for  said 
garnishees.    From  this  decision  the  plaintiffs  appealed. 

Bay,  J.  The  question  presented  for  our  consideration  in  this  case 
is,  whether  the  personal  property  and  effects  of  a  decedent,  in  the 

25  In  In  re  Henson,  Cli ester  v.  HensoB,  [190S]  2  Ch.  356,  it  was  held  that  a 
beneficial  devise  of  land  in  fee  to  a  devisee,  who  is  also  an  executor,  subject 
to  a  general  charge  of  debts  and  legacies,  empowers  that  executor  devisee  to 
sell  or  mortgage  the  laud  and  to  give  a  good  receipt  to  the  purchaser  or  mort- 
gagee, wlio  is  not  bound  to  see  to  the  application  of  the  purchase  or  mort- 
gage money,  even  if  it  is  expressed  to  be  raised  for  the  payment  of  legacies 
only. 


584  PROBATE    AND    ADMINISTRATION.  (Part   3 

hands  of  his  executor  or  administrator,  can  be  seized  by  a  judgment 
creditor  of  such  executor  or  administrator,  and  applied  to  the  payment 
of  the  individual  indebtedness  of  such  executor  or  administrator. 

The  plaintiff  in  error  contends  for  the  affirmative  of  this  proposi- 
tion, and  relies  chiefly  upon  the  decision  of  the  Supreme  Court  of  this 
state  in  Lacompte  v.  Seargent,  7  Mo.  351,  in  which  Judge  Tompkins, 
in  delivering  the  opinion  of  the  court,  said :  "No  principle  of  law  is 
more  generally  acknowledged  than  that  the  executor  or  administrator 
is,  for  every  purpose,  the  owner  of  the  moneys  of  his  intestate  which 
have  come  to  his  hands." 

The  same  doctrine  was  acquiesced  in,  in  Thomas  v.  Relfe,  9  Mo. 
377 ;  but,  after  a  careful  examination  of  the  question,  we  are  at  loss 
to  discover  any  good  reason  upon  which  it  can  be  maintained.  It  is 
true,  that  at  common  law  the  legal  property  in  the  personal  estate  of 
the  testator  vests,  on  his  death,  in  the  executor,  and  for  many  purposes 
[he]  may  be  regarded  as  the  owner.  He  may,  for  instance,  maintain 
an  action  for  a  wrongful  conversion  of  the  property,  or  for  any  injury 
to  the  property,  in  his  individual  name,  and  for  every  purpose  neces- 
sary to  enable  him  to  discharge  the  duties  of  his  office  he  is  regarded 
in  law  as  the  owner  of  the  property.  As  a  necessary  incident  to  the 
nature  of  the  office,  he  has  a  disposing  power  over  the  property;  but 
that  he  is  the  owner  for  every  purpose,  cannot  be  maintained  upon  ei- 
ther reason  or  authority.  The  only  authority  cited  by  Judge  Tomp- 
kins is  Farr  et  al.  v.  Newman  et  al.,  4  Durnf ord  &  East,  347 ;  but  that 
case,  so  far  from  supporting  the  doctrine  contended  for,  is  an  author- 
ity to  the  contrary.  Chief  Justice  Kenyon,  Justice  Grose,  and  Justice 
Ashhurst,  in  separate  opinions,  held  that  goods  of  a  testator  in  the 
hands  of  his  executor  could  not  be  seized  in  execution  of  a  judgment 
against  the  executor  on  his  own  right.  Buller,  J.,  gave  a  dissenting 
opinion,  and  it  is  this  dissenting  opinion,  and  not  the  opinion  of  the 
court,  that  Judge  Tompkins  had  in  view,  when  writing  the  opinion  in 
Lacompte  v.  Seargent. 

Grose,  J.,  reviewed  the  question  at  great  length,  and  thus  refers  to 
the  rule  as  contended  for  by  Justice  Buller:  "The  injustice  is  obvious. 
It  is  to  make  the  goods  of  A.  pay  the  debts  of  B. ;  and  possibly  leave 
the  creditors  of  A.  without  any  redress  but  against  the  person  of  B. 
One  case  of  intolerable  hardship  may  be  put:  Suppose  the  executor 
indebted  to  the  crown  in  more  than  the  value  of  his  own  and  the  testa- 
tor's personal  estate ;  the  moment  the  executor  is  invested  with  his  au- 
thority, an  extent  issues  and  sweeps  away  every  shilling  of  the  testa- 
tor, in  fraud  of  his  creditors,  legatees,  and  next  of  kin.  A  more 
shameful  act  of  injustice  can  hardly  exist  under  the  name  of  law." 

Again  the  learned  judge  remarks :  "Why  may  not  the  executor  de- 
rise  the  testator's  goods ;  why  may  not  his  administrator  take  them ; 
why  are  they  not  forfeited  to  the  crown  on  attainder;  why  are  they 
diot  liable  to  be  seized  under  a  commission  of  bankruptcy  against  the 
executor?    The  answer  and  reason  is,  I  think,  obvious.     It  is  because 


Ch.    2)  TITLE   AND   POWERS   OF   EXECUTORS.  585 

they  are  not  his  goods;  he  is  only  the  distributor  and  dispenser  of 
them  for  the  benefit  of  the  creditors,  the  legatees,  and  the  next  of  kin, 
of  the  testator.  To  permit  him  to  devise  them,  to  permit  his  adminis- 
trator to  take  them,  to  permit  the  assignees,  under  a  commission 
against  the  executor,  to  seize  them,  and  to  permit  the  sheriff,  under  an 
execution  issued  against  his  goods,  to  take  them,  would  be  to  dispose 
of  them  for  purposes  for  which  he  had  them  not — in  a  way  in  which  it 
cannot  by  any  law  be  intended  that  those  purposes  will  be  answered." 

In  Howard  v.  Jemmet,  3  Burrows,  1368,  Lord  Mansfield  said:  "If 
an  executor  becomes  bankrupt,  the  commissioners  cannot  seize  the 
specific  effects  of  his  testator:  not  even  in  money,  which  specifically 
can  be  distinguished  and  ascertained  to  belong  to  such  testator,  and 
not  to  the  bankrupt  himself." 

In  Comyn's  Digest,  vol.  1,  p.  259,  it  is  said,  in  speaking  of  the  goods 
of  the  testator :  "Nor  shall  they  be  taken  in  execution  for  the  proper 
debt  of  the  executor  or  administrator." 

We  think,  therefore,  that  we  are  justified  in  saying  that  Judge 
Tompkins  was  mistaken  in  supposing  that  either  under  our  law,  or  the 
common  law.  the  administrator  is  the  owner,  for  every  purpose,  of  the 
goods  of  the  intestate. 

Suppose  an  administrator  should  die  before  a  final  settlement,  will 
it  be  contended  that  the  goods  and  effects  which  were  in  his  hands 
as  administrator,  will  go  to  his  executor  or  administrator  to  pay  his 
debts,  or  to  be  distributed  among  his  heirs  ?  Certainly  not ;  and  why 
not,  if  he  was,  for  every  purpose,  the  owner  of  such  goods  and  ef- 
fects ? 

But  if  any  doubt  can  exist  as  to  the  rule  under  the  common  law,  it 
is  very  clear  that  under  our  statute  the  administrator  is  in  no  sense 
the  unqualified  owner  of  the  goods  of  his  intestate.  The  act  defining 
his  duties  and  powers  requires  him  to  give  a  bond,  with  two  or  more 
sufficient  securities;  and  one  of  the  conditions  of  the  bond  is,  "that 
he  shall  account  for,  pay,  and  deliver  all  money  and  property  of  said  es- 
tate." He  is  further  required  to  have  the  personal  property  appraised, 
and  to  file  an  inventory  of  the  same,  which  inventory  must  be  made  in 
the  presence  of  witnesses  appointed  for  that  purpose ;  and  if  he  shall 
open  or  examine  the  papers,  money,  or  other  property  of  the  deceased, 
without  the  publicity  and  attestation  provided  in  the  act.  he  becomes 
liable  to  pay  to  the  persons  entitled  to  the  estate  a  sum  not  exceeding 
five  thousand  dollars.  So  his  duties  with  respect  to  the  sale  and  dis- 
position of  the  personal  property  are  marked  out  and  defined,  and  pen- 
alties are  imposed  for  any  neglect  of  the  same.  If  he  shall  die  or  re- 
sign, or  his  letters  be  revoked,  he  or  his  legal  representatives  must 
account  for,  pay  and  deliver  to  his  successor,  or  to  the  surviving  or 
remaining  administrator,  all  money,  real  and  personal  property,  of 
any  kind,  of  the  deceased ;  and  the  succeeding  or  remaining  adminis- 
trator is  empowered  to  proceed  at  law  against  the  delinquent  and  his 
securities,  or  either  of  them,  or  against  any  other  person  possessed 


586  PROBATE    AND    ADMINISTRATION.  (Part   3 

of  any  part  of  the  estate.  He  is  further  required  to  make  annual  set- 
tlements with  the  county  or  probate  court;  and  after  a  final  settle- 
ment of  the  estate  (and  sometimes  before),  the  personal  effects  re- 
maining in  his  hands  are  to  be  distributed  among  those  entitled  there- 
to, as  such  court  shall  order  and  direct. 

These  and  other  provisions  of  the  statute  upon  the  same  subject 
show  very  conclusively,  that,  under  our  system  of  laws,  the  adminis- 
trator is  by  no  means  the  absolute  owner  of  the  goods  and  effects  of  the 
intestate.  If  the  law  was  otherwise,  and  such  property  could  be 
seized  for  the  payment  of  the  individual  liabilities  of  the  administra- 
tor, it  would  result  most  disastrously  to  creditors,  heirs  and  legatees. 
They  would  be  wholly  remediless ;  for  it  can  hardly  be  contended  that 
the  securities  in  the  administration  bond  would  be  liable  for  property 
thus  misappropriated  when  it  becomes  the  act  of  the  law,  and  does  not 
result  from  any  negligence  or  misconduct  of  the  administrator. 

The  judgment  of  the  court  below  will  be  affirmed;  the  other  judges 
concurring.^* 


MACKAY  V.  ST.  MARY'S  CHURCH. 

(Supreme  CJourt  of  Rhode  Island,  1885.    15  R.  I.  121,  23  Atl.  108,  2  Am.  St. 

Rep.  881.) 

StinESS,  J.*'  The  plaintiff  sues,  as  indorsee,  upon  two  notes  given 
by  the  defendant  corporation  to  William  H.  Kelly  and  James  Duffy, 
administrators  upon  the  estate  of  William  E.  Duffy.  It  is  admitted 
that  William  E.  Duffy  died  in  Connecticut;  that  these  persons  were 
appointed  administrators  in  Connecticut,  and  also  in  the  state  of  Nev/ 
York,  where  both  of  them  reside ;  and  that  the  defendant  corporation, 
by  its  treasurer  duly  authorized,  gave  the  notes  in  the  settlement  of  a 
debt  admitted  to  be  due  from  the  corporation  to  the  estate  of  William 
E.  Duffy.  April  8,  1881,  after  the  notes  were  due,  the  defendant  paid 
$G00  on  account  to  James  Duffy,  one  of  the  administrators,  under  an 
arrangement  made  with  him  to  settle  the  whole  indebtedness  at  a  fu- 
ture time,  for  the  face  of  the  notes,  without  interest.  After  this,  and 
before  April  23,  1881,  William  H.  Kelly,  the  other  administrator,  "for 
himself  and  James  Duffy,  administrators  of  estate  of  William  E. 
Duffy,  deceased,"  indorsed  one  of  the^  notes,  and  delivered  the  other, 
which  was  made  payable  to  the  plaintiff  as  attorney,  and  by  him  in- 
dorsed in  blank,  to  plaintiff  for  his  fees  for  legal  service  rendered  in 
settlement  of  the  estate,  his  bill  having  been  subsequently  allowed  by 
the  surrogate  in  New  York,  in  Kelly's  account,  to  the  amount  of  $3,- 
000.  Thereupon  the  plaintiff  notified  the  defendant  of  his  ownership 
of  the  notes,  and  demanded  payment.  April  30,  1881,  after  such  notice, 

26  See  Satterwhite  v.  Carson,  25  N.  C.  549  (1843). 
2T  Part  only  of  the  opinion  is  given. 


Ch.    2)  TITLE  AXD   POWERS  OF   EXECUTORS.  587 

the  defendant  paid  to  James  Duffy,  administrator,  $900  more,  and  took 
from  him  a  general  release,  under  seal,  of  all  claims  of  the  estate  of 
William  E.  Duffy  against  the  defendant,  and  particularly  of  the  notes 
in  question;  the  balance,  as  agreed,  to  be  paid  when  Duffy  should  ob- 
tain and  surrender  the  notes.     *     *     * 

2.  Can  a  note  given  to  two  joint  administrators  be  transferred  by 
one  of  them?  There  is  no  question  that  one  of  two  executors  or  ad- 
ministrators may  transfer  notes  held  by  the  deceased,  for  the  reason 
that  the  several  persons  are  considered  as  holding  one  office,  and,  in 
the  settlement  of  the  estate,  the  act  of  one  is  equivalent  to  the  act  of 
all.  The  power  of  the  office  may  be  fully  exercised  by  one,  for  each 
takes  the  whole  in  his  representative  capacity,  and  not  a  moiety. 
Stone  V.  Bank,  13  R.  I.  25.  When,  therefore,  administrators,  in  col- 
lecting assets,  take  a  note  payable  to  themselves  as  administrators, 
though  the  form  of  the  obligation  be  changed,  its  character  is  the 
same;  it  is  still  a  debt  due  to  the  estate,  not  to  them  personally,  and 
its  proceeds  are  assets  of  the  estate.  We  see  no  reason,  therefore,  why 
the  same  rule  should  not  apply  as  though  the  obligation  remained  in 
its  original  form.  The  case  is  quite  different  from  the  ordinary  case 
of  joint  payees,  who  may  have  adverse  interests,  and  where  each  is 
entitled  to  hold  his  moiety  of  the  obligation  until  he  sees  fit  to  part 
with  it.  In  the  ordinary  cases  of  joint  payees,  excepting,  of  course, 
copartnerships,  neither  one  represents  the  other;  one  alone,  therefore, 
cannot  transfer  a  note  without  the  other.  But  where  one  represents 
the  whole,  as  a  partner  or  an  administrator,  the  rule  should  follow  the 
reason.  And  thus  it  has  been  held  in  Bogert  v.  Hertell,  4  Hill  (N. 
Y.)  492,  where  the  cases  upon  this  point  were  carefully  examined. 
See,  also,  1  Daniel,  Neg.  Inst.  §  268,  and  1  Pars.  Bills  &  N.  p.  159. 

Most  of  the  cases  to  which  we  have  been  referred  by  the  defendant 
are  cases  of  individual  joint  payees,  and  cases  of  partners  after  disso- 
lution. In  Sanders  v.  Blain's  Adm'rs,  6  J.  J.  Marsh.  (Ky.)  446,  22 
Am.  Dec.  86,  the  court  said  that  the  administrator  and  administratrix 
might  have  sued  jointly  or  individually ;  but  as  the  administrator  had 
undertaken  to  act  individually,  not  as  administrator,  he  could  not 
transfer  the  note  without  the  other  payee.  Smith  v.  Whiting,  9  Mass. 
334,  is  commented  on  in  Bogert  v.  Hertell.  In  the  present  case  the 
notes  were  given  for  different  amounts,  and  in  different  tenor,  for  a 
debt  due  to  the  estate  represented  by  the  administrators.  They  were, 
therefore,  assets  of  the  estate,  and,  as  such,  we  hold  that  they  could 

be  dealt  with  as  other  assets  of  the  estate  by  either  administrator. 
*     *     * 

We  conclude,  therefore,  that  the  plaintiff  is  entitled  to  recover  the 
amount  due  upon  the  notes  when  they  came  into  his  hands.  Judgment 
for  plaintiff.^® 

2  8  "Co-executors,  however  numerous,  constitute  an  entity,  and  are  resarderi 
in  law  as  an  individual  person.  Consequently  the  acts  of  any  one  of  them  in 
respect  to  the  administration  of  estates  are  deemed  to  be  the  acts  of  all,  for 


588  PROBATE    AND    ADMINISTRATION.  (Part   3 

In  re  O'DONNELL'S  ESTATE. 
(Irish  Court  of  Appeal.    [1905]  1  Ir.  Rep.  406.) 

February  10,  1876,  Dominick  O'Donnell  mortgaged  certain  lands  to 
George  Latch  ford  to  secure  £350  with  interest  at  8  per  cent.  August 
11,  1878,  George  Latchford  died,  and  September  23,  1878,  letters  of 
administration  were  granted  to  James  Latchford,  one  of  the  seven 
next  of  kin.  December  20,  1886,  James  Latchford  executed  to  Alfred 
Henry  a  submortgage  of  the  mortgage  of  February  10,  1876,  which 
submortgage  was  to  secure  £200  with  interest  at  8  per  cent..  James 
Latchford  told  Alfred  Henry  at  the  time  that  he  was  borrowing  the 
money  for  the  purpose  of  paying  certain  debts  of  George  Latchford, 
deceased,  and  also  of  paying  a  distributive  share  of  the  assets  to  a 
younger  brother  who  was  going  abroad.  In  1887  James  Latchford 
went  to  Australia  and  did  not  return.  Grant  of  administration  to  him 
was  then  revoked,  and  July  7,  1903,  letters  of  administration  de  bonis 
non  were  granted  to  Richard  Latchford.  It  was  objected  in  this  pro- 
ceeding that  the  submortgage  of  £200  was  not  a  valid  mortgage  of  the 

they  have  all  a  joint  an<5  entire  authority  over  the  whole  property.  Williams, 
Ex'rs,  810-  Wlieeler  v.  Wheeler.  9  Cow.  34.  Thus  o]ie  of  two  executors  may 
assign  a  note  belonging  to  the  estate  of  the  testator  (Wheeler  v.  Wheeler,  su- 
pra), or  make  sales  and  transfers  of  any  personal  property  of  the  estate  (Bo- 
gert  V.  Hertell,  4  Hill,  492).  He  may  release  or  pay  a  debt,  assent  to  a  legacy, 
surrender  a  term,  or  make  an  attornment  without  the  consent  or  sanction  of 
the  others.  Williams,  Ex'rs,  812 ;  Jackson  v.  Shaffer,  11  Johns.  513 ;  Douglass 
V.  Satterlee,  11  Johns.  16;  Murray  v.  Blatchford,  1  Wend.  583,  19  Am.  Dec. 
.^,>7.  It  was  said  in  Wheeler  v.  Wheeler,  supra,  'that,  if  a  man  appoint  sev- 
eral executors,  they  are  esteemed  in  law  as  but  one  person  representing  the 
testator,  and  that  acts  done  by  any  one  of  them,  which  relate  to  the  delivery, 
sift,  sale  or  release  of  the  testator's  goods,  are  deeniPd  the  acts  of  all.'  It 
would  seem  to  follow  from  this  principle  that  they  have  the  power  of  joint  and 
several  agents  of  one  priiiripal,  and  that  any  act  done  or  performed  by  one. 
within  the  scope  and  authority  of  his  agency,  is  a  valid  exercise  of  power,  and 
binds  his  associates."  Ruger,  C.  J.,  in  Barry  v.  Lambert,  98  N.  Y.  300,  308,  50 
Am.  Rep.  677  (1885).    But  see  Smith  v.  Whiting,  9  Mass.  334  (1812). 

LiAEiriTT  OF  One  Personal  Representative  for  the  Acts  op  Another. — 
"The  defendant  P.  is  not  responsible  for  the  devastavit  of  his  co-executor,  C, 
any  further  than  he  is  shown  to  have  been  knowing  and  assenting  at  the  time 
to  such  devastavit  or  misapplication  of  the  assets  of  the  estate.  Both  the 
execut(.is  could  not,  with  any  kind  of  convenience,  jointly  possess  and  hold  all 
the  assets.  The  assets  must,  from  the  necessity  and  reason  of  the  case,  have 
been  distributed  between  the  executors,  for  the  purpose  of  collection  and  se- 
curity;  and  it  appears  to  be  settled,  and  upon  very  just  principles,  that  one 
executor  shall  not  be  chargeable  with  the  waste  of  the  other  except  so  far  as 
he  concurred  therein,  and  that  merely  permitting  the  other  to  possess  the 
assets,  without  going  further,  and  concurring  in  the  application  of  them,  does 
not  render  him  answerable  for  the  receipts  of  the  other.  Hargthorpe  v.  Wil- 
ford,  Cro.  Eliz.  318;  Harvey  v.  Blakeman,  4  Vesey,  .596.  Each  executor  is  liable 
only' for  his  own  acts  and  what  he  receives  or  applies,  unless  he  hands  over 
the  moneys  collected  or  received  to  his  co-executor,  or  joins  in  the  direction  or 
misapplication  of  the  assets."  Chancellor  Kent,  in  Sutherland  v.  Brush,  7 
Johns.  Ch.  (N.  Y.)  17,  22-23  (1823).  To  the  above  statement,  however,  should 
be  added  the  following:  "So,  if  he  carelessly  permit  the  co-executor  to  mis- 
manage or  waste  the  estate,  he  becomes  liable."  2  Woeruer's  American  Law 
of  Administration  (2d  Ed.)  §  349,  *738. 


Ch.    2)  TITLE  AND   POWERS  OF   EXECUTORS.  589 

mortgage  of  February  10,  1876,  and  only  affected  the  beneficial  in- 
terest of  the  said  James  Latchford  as  one  of  the  seven  next  of  kin 
of  George  Latchford.  Ross,  J.,  having  disallowed  the  objection,  Rich- 
ard Latchford  appealed. 

Lord  Ashbourne,  C.^*  This  is  an  appeal  from  an  order  of  Judge 
Ross,  which  raises  an  interesting  point.  It  appears  that  in  the  admin- 
istration of  the  business  of  his  court  he  had  to  consider  a  submort- 
gage of  a  mortgage  made  originally  for  £350.  The  mortgage  was 
made  to  a  man  named  George  Latchford,  who  died  intestate,  leaving 
an  estate  to  be  administered.  In  the  course  of  the  administration  his 
personal  representative  borrowed  from  Mr.  Henry  a  sum  of  £200 
which  he  secured  by  a  submortgage  of  the  original  mortgage  for  £350, 
and  he  stated  that  he  required  the  £200  to  pay  some  of  the  debts  of 
the  deceased,  and  also  to  pay  a  share  to  one  of  the  next  of  kin.  Mr. 
Henry  now  comes  in  asking  for  payment  of  this  sum  of  £300,  and  he 
is  met  with  the  objection.  This  was  not  a  mortgage  made  in  due 
course  of  administration,  and  you  have  no  right  to  look  for  payment 
to  the  proceeds  of  the  sale  of  the  lands.  The  whole  question  is :  Is 
this  submortgage  to  be  regarded  as  made  for  the  private  purposes  of 
the  administrator,  and  not  made  by  him  as  personal  representative,  as 
stated  on  the  face  of  the  mortgage,  to  raise  £200  to  be  applied  for  the 
purposes  of  the  administration?  Ross,  J.,  held  it  was  a  mortgage 
rightly  made  in  due  course  of  administration,  and  he  overruled  the 
objection.  From  that  decision  an  appeal  has  been  taken,  and  it  was 
argued — not  that  the  mortgage  was  not  bona  fide,  not  that  Mr.  Hen- 
ry's conduct  was  open  to  question — but  that  because  the  mortgagor 
stated  to  Mr.  Henr}'  that  the  money  was  required  to  pay  off  debts,  and 
also  to  pay  one  of  the  next  of  kin,  though  it  would  be  right  so  far  as 
payment  of  debts  is  concerned,  yet  the  whole  thing  is  invalid,  because 
the  mortgagor  stated  he  wanted  a  portion  of  the  money  to  pay  one  of 
the  beneficiaries.  The  narrow  way  in  which  the  case  was  presented  by 
Mr.  Wilson  and  Mr.  Brady  was  that  though  the  mortgage  was  rightly 
executed,  so  far  as  the  payment  of  debts  was  concerned,  yet  in  so  far 
as  the  money  was  used  to  pay  one  of  the  beneficiaries  it  was  invalid, 
and  that  that  so  tainted  the  whole,  that  it  would  invalidate  the  entire 
mortgage.  As  Mr,  Wilson  put  it,  if  an  administrator  went  into  the 
market  to  borrow  money  for  the  purposes  of  the  administration,  if 
he  borrowed  £1,500  for  payment  of  debts,  and  £50  to  pay  one  of  the 
next  of  kin,  the  mortgage  would  be  void. 

1  think  that  in  this  case  the  payment  to  the  next  of  kin  might  be 
reasonable  and  proper,  and  that  Ross,  J.,  was  right  in  his  view  of  the 
case.  This  was  a  bona  fide  advance  to  an  administrator,  describing 
himself  as  such,  for  purposes  none  of  which  were  personal  to  himself. 
I  am.  therefore,  of  opinion  that  the  order  appealed  from  should  be 
affirmed,  and  that  the  appeal  should  be  dismissed  with  costs. 

2  9  The  statement  of  facts  is  rewritten  and  abbreviated.  The  opinion  of  Ross, 
J.,  below  is  omitted 


590  PROBATE    AND    ADMINISTRATION.      '  (Part   3 

WalkKR,  L.  J.  I  concur.  This  mortgage  was  made  twenty  years 
ago,  in  1886,  eight  years  after  the  death  of  the  intestate,  at  a  time 
when  there  was  no  presumption  that  the  debts  were  paid.  The  admin- 
istrator appHed  for  a  loan,  and  he  told  Mr.  Henry,  to  whom  he  applied, 
that  he  wanted  the  money  to  pay  debts,  and  also  for  the  purpose  of 
making  an  advance  to  one  of  the  next  of  kin.  In  my  opinion  both 
these  objects  were  for  the  purpose  of  administration — (1)  to  pay 
debts;  and  (2)  to  pay  one  of  the  next  of  kin.  The  transaction  did 
not  involve  a  private  debt,  and  was  not  a  devastavit.  We  are  asked 
by  the  appellant  to  say  that  it  was  a  bad  mortgage  from  first  to  last. 
That  I  am  not  prepared  to  lay  down.  I  think  that  an  advance  may 
be  obtained  by  an  administrator  to  pay  a  portion  to  one  of  the  next 
of  kin  without  committing  a  devastavit.  There  is  nothing  to  show 
that  it  was  a  devastavit,  beyond  this — that  one  of  the  objects  for 
which  the  money  was  advanced  was  for  the  purpose  of  paying  one  of 
the  next  of  kin.  That  is  a  purpose  of  administration,  though  payment 
of  debts  comes  first.  It  is  as  much  the  duty  of  an  administrator  to 
pay  the  next  of  kin  as  to  pay  the  debts  of  the  deceased. 

Holmes,  L.  J.  In  1886  James  Latchford  was  the  administrator  of 
George  Latchford's  estate,  part  of  which  consisted  of  a  mortgage. 
I  am  satisfied  on  the  facts  of  the  case  that  it  was  impossible  to  get 
in  the  whole  of  this  mortgage  at  the  time.  It  could  not  have  been  real- 
ized in  the  Land  Judge's  Court  at  that  time,  and  it  has  not  been  real- 
ized since.  Therefore,  in  1886  the  administrator  had  vested  in  him  a 
mortgage  which  could  not  be  realized.  The  administrator  requiring 
money  borrowed  the  amount  from  a  lender,  telling  him  that  he  wanted 
it  to  pay  debts,  and  also  to  pay  one  of  the  next  of  kin  portion  of  his 
demand.  Under  these  circumstances  the  question  is:  Was  it  a  good 
mortgage,  for  the  ordinary  purposes  of  administration?  So  far  as  the 
money  raised  by  the  mortgage  was  required  for  the  payment  of  debts, 
it  was  a  good  mortgage;  but  I  think  that  an  administrator  may  also 
make  an  advance  to  one  of  the  next  of  kin,  without  committing  a  dev- 
astavit, and  that  he  can  raise  the  money  by  sale  or  mortgage  for  that 
purpose  without  any  illegality.  That  is  the  ground  of  the  decision  of 
Ross,  J. ;  and  I  think  it  is  right.^° 

80  In  Russell  v.  Plaice,  18  Beav.  21  (1854),  the  power  of  an  executor  or  ad- 
ministrator to  mortgage  was  held  to  include  the  power  to  give  a  power  of  sale 
mortgage. 


Ch.    3)  THE   PAYMENT   OF   DEBTS   OF  THE  ESTATE.  591 

CHAPTER  III 
THE  PAYMENT  OF  DEBTS  OF  THE  ESTATE 


SECTION  1.— CLAIMS  AGAINST  THE  ESTATE 


CRAVATH  V.  PLYMPTON,  Adm'r  of  Goodenow. 

(Supreme  Judicial  Court  of  Massachusetts,  1816.     13  Mass.  454.) 

This  was  an  action  on  the  case,  originally  commenced  by  the  plain- 
tiff, against  the  said  Goodenow,  late  a  deputy  under  William  Hildreth, 
Esq.,  late  sheriff  of  this  county,  for  a  nonfeasance  in  neglecting  to 
levy  an  execution  for  the  plaintiff  on  the  body  of  his  debtor.  The  in- 
testate, in  his  lifetime,  pleaded  not  guilty,  and  died  before  a  trial  of 
the  issue.  At  November  term,  1814,  the  defendant,  having  sued  out 
letters  of  administration  on  the  estate  of  Goodenow,  came  into  court, 
and  moved  that  the  action  should  be  dismissed,  on  the  ground,  that  it 
did  not  survive  against  him. 

Putnam,  J.  It  is  settled  in  many  of  the  books  (Com.  Dig.  Tit.  "Ad- 
ministration," B.,  14,  cites  41  Ass.  pi.  15 ;  Dyer,  322 ;  1  Rol.  921,  1, 
20 ;  2  Inst.  382 ;  1  Saund.  21)  that  trespass  does  not  lie  against  the 
executor  of  a  gaoler  for  an  escape;  and,  in  the  case  of  Hambley  et 
al.  v.  Trott,  Adm'r,  Cowp.  371,  it  was  decided  that  actions  arising  ex 
delicto,  as,  for  assault  and  battery,  imprisonment,  trespass,  words,  nui- 
sance, and  escape  against  the  sheriff,  die  with  the  person. 

The  principles  adopted  seem  to  be  that,  where  the  deceased,  by  a 
tortious  act,  acquired  the  property  of  the  plaintiff,  as,  by  cutting  his 
trees  and  converting  them  to  his  own  use,  or  by  converting  his  goods 
to  his  own  use,  although  no  action  of  trover  or  trespass  will  lie,  yet 
the  law  will  give  the  plaintiff  some  form  of  action,  to  recover  the  prop- 
erty thus  tortiously  obtained.  But  where,  by  the  act  complained  of, 
the  deceased  acquired  no  gain,  although  the  plaintiff  may  have  suffered 
great  loss,  there  the  rule,  "Actio  personalis  moritur  cum  persona," 
applies. 

The  case  at  bar  comes  within  the  latter  branch  of  the  rule.  The  de- 
ceased had  no  pecuniary  benefit  by  reason  of  his  wrongful  act.  The 
reparation,  to  which  the  plaintiff  was  entitled,  was  for  the  damages 
he  had  sustained  from  the  tort,  and  not  for  any  property  the  deceased 
had  obtained. 

Although  the  statute  of  1805,  c.  99,  §  2,  has  alteredthe  common 
law  in  relation  to  suits  against  the  executors  and  administrators  of 


592  PROBATE    AND    ADMINISTRATION.  (Part    8 

the  sheriff,  by  providing  for  their  liability  to  suits  for  the  malfeasance 
or  nonfeasance  of  the  sheriff  or  his  deputy,  yet  we  are  not  disposed 
to  extend  the  liability  to  the  administrators  of  deputy  sheriffs,  as  the 
statute  has  not  included  them  in  the  provision. 
Action  dismissed.^ 


STEBBINS  V.  PALMER. 

(Supreme  Judicial  Court  of  Massachusetts,  1822.     1  Pick.  71,  11  Am.  Dec 

146.) 

Julia  Palmer,  the  respondent,  brought  an  action  for  a  breach  of 
promise  of  marriage  against  Benjamin  Stebbins,  who  died  while  the 
action  was  pending.  Nearly  two  years  after  his  death,  she  made  ap- 
plication to  the  judge  of  probate,  representing  that  no  person  had 
taken  out  letters  of  administration  on  his  estate,  that  she  was  a  credi- 
tor, and  at  the  time  of  his  death  had  an  action  pending  against  him, 
which  had  been  continued  from  time  to  time,  to  enable  her  to  sum- 
mon in  any  person  who  should  be  appointed  administrator,  and  pray- 
ing that  letters  of  administration  might  be  granted  to  such  person  as 
the  judge  should  think  proper.  It  was  accordingly  decreed  that  let- 
ters of  administration  should  be  granted.  Marytta  Stebbins,  the  widow 
of  Benjamin,  having  omitted  to  appeal  from  this  decree  in  the  ordinary 
way,  now  petitioned  the  court  for  leave  to  enter  an  appeal,  pursuant 
to  St.  1817,  c.  190,  §  8,  alleging  that  her  omission  arose  from  mistake. 
And  whether  justice  required  a  revision  of  the  decree  depended  on  the 
question  whether  the  respondent  was  interested  as  a  creditor  in  the  es- 
tate of  the  deceased. 

Wilde,  J.  [After  stating  the  grounds  on  which  the  court  thought 
it  reasonable  that  the  petitioner  should  be  permitted  to  enter  her  ap- 
peal, in  conformity  with  St.  1817,  c.  190,  §  8,  if  she  could  show  that 
justice  required  a  revision  of  the  decree,  he  proceeded:] 

This  she  attempts  by  referring  us  to  the  grounds  on  which  the  de- 
cree is  founded,  which,  her  counsel  have  argued,  are  insufficient  in 
law  to  sustain  it.     They  contend  that  no  one  interested  in  the  estate 

1  "The  principle  Involved  Is :  In  the  case  of  a  tort  directly  resulting  in  the 
wrongful  acquisition  of  property,  the  law  imposes  on  the  wrongdoer  the  duty 
of  returning  that  property  to  the  owner.  This  duty  may  be  treated  as  a  quasi 
contract,  and  the  neglect  to  perform  it  may  become  a  breach  of  contract.  In 
such  case  the  damage  resulting  from  the  tort  is  substantially  the  value  of 
the  property,  and  the  damage  resulting  from  the  breach  of  contract  is  sub- 
stantially measured  in  the  same  way ;  and,  so  for  determining  the  question  of 
survival,  the  substantial  cause  of  action  may  properly  be  treated  as  founded 
in  contract,  although  the  form  of  action  might  sound  in  tort.  But  such  prin- 
ciple cannot  apply  unless  property  is  acquired;  merely  deriving  benefit  from 
the  tort  is  not  sufficient."  Per  Ilamersley,  J.,  in  Payne's  Appeal,  G5  Conn.  397, 
32  Atl.  948.  33  L.  R.  A.  418.  48  Am.  St.  Uep.  215  (1895). 

In  ILunbley  v.  Trott,  Cowp.  371  (177G).  it  was  held  that  the  tort  form  of  ac- 
tion was  fatal  to  recovery,  even  though  a  quasi  contractual  obligation  existed, 
and  that  the  contract  form  of  action  must  be  resorted  in  in  such  case. 


Ch.    3)  THE  PAYMENT   OF    DEBTS    OF  THE  ESTATB.  593 

is  desirous  that  administration  should  be  granted,  and  that  there  is 
no  necessity  for  incurring  such  an  expense.  If  this  has  been  made 
to  appear,  the  decree  ought  to  be  reversed. 

Generally  administration  ought  not  to  be  granted,  except  on  the 
application  of  some  one  entitled  to  administration,  on  who  is  interested 
in  the  estate  to  be  administered  upon.  The  question  then  is  whether 
the  respondent  is  interested  in,  or  has  any  claims  upon,  the  estate  of 
the  deceased.  At  the  time  of  his  decease  she  had  an  action  against  him 
pending  in  this  court,  founded  on  the  breach  of  a  promise  of  marriage ; 
and  if  this  action  by  law  survives,  there  is  good  ground  for  granting 
letters  of  administration,  whether,  strictly  speaking,  she  is  a  creditor 
or  not;  for  in  such  case  justice  would  require  that  administratiop 
should  be  granted,  so  that  the  action  might  be  prosecuted  to  fina^ 
judgment.  The  principal  question,  therefore,  is  whether  such  an  ac- 
tion by  law  survives. 

The  maxim,  "Actio  personalis  moritur  cum  persona,"  decides  noth 
ing,  for  it  is  admitted  that  it  is  not  applicable  generally  to  contracts : 
and,  although  it  commonly  does  apply  where  the  cause  of  action  is  / 
tort,  or  arises  ex  delicto,  yet  in  many  such  cases  the  tort  may  be  waived 
and  in  an  action  founded  on  the  principles  of  civil  obligation  dam- 
ages may  be  recovered  for  a  trespass.    Where  there  is  a  duty,  as  well 
as  a  wrong,  an  action  will  survive  against  the  executor.    He  is  respon- 
sible for  the  debts  of  the  deceased,  and  for  all  undertakings  and  acts 
that  create  a  debt,  as  far  as  there  are  assets.    And  it  seems  to  make  no 
difference,  whether  the  debt  be  certain  or  uncertain,  or  whether  it 
arises  from  a  promise  express  or  implied. 

If  the  cause  of  action  has  been  beneficial  to  the  testator,  the  executor 
shall  be  charged.  "Where,"  says  Lord  Mansfield,  "besides  the  crime, 
property  is  acquired  which  benefits  the  testator,  there  an  action  for  the 
value  of  the  property  shall  survive  against  the  executor;  but  if  it  is  a 
sort  of  injury  by  which  the  offender  acquires  no  gain  to  himself  at 
the  expense  of  the  sufferer,  the  person  injured  has  only  a  reparation 
for  the  delictum  in  damages  to  be  assessed  by  a  jury."  Cowp.  376. 
The  distinction  seems  to  be  between  causes  of  action  which  affect  the 
estate,  and  those  which  affect  the  person  only ;  the  former  survive  for 
or  against  the  executor,  and  the  latter  die  with  the  person. 

According  to  this  distinction,  an  action  for  the  breach  of  a  promise 
of  marriage  would  not  survive ;  for  it  is  a  contract  merely  personal, 
at  least  it  does  not  necessarily  affect  property.  The  principal  ground 
of  damages  is  disappointed  hope;  the  injury  complained  of  is  violated 
faith,  more  resembling  in  substance  deceit  and  fraud,  than  a  mere 
common  breach  of  promise.  The  damages  may  be.  and  frequently  are. 
vindictive,  and,  if  they  could  be  proved  against  the  executor,  might 
render  the  estate  insolvent,  to  the  loss  and  injury  of  creditors.  For 
these  and  other  reasons  it  has  been  setded  in  England  that  such  an  ac- 
tion does  not  survive  for  an  executor.  If  this  was  rightly  settled,  it  is 
Cost.  Wills— 38 


594  PROBATE    AND    ADMINISTRATION.  (Part   3 

decisive,  for  the  law  is  unquestionably  the  same,  whichever  party  may 
die. 

The  case  of  Chamberlain  v.  Williamson  [2  M.  &  S.  408]  was  con- 
sidered as  an  action  of  the  first  impression,  which  shows  at  least  what 
the  law  was  supposed  to  be  before.  This  is  a  consideration  of  no  small 
weight,  which,  joined  to  the  principles  and  reasoning  of  that  case,  is 
entirely  convincing. 

The  respondent  has  laid  no  special  damages  in  her  declaration,  and 
has  not  averred  in  her  application  to  the  judge  of  probate  that  she 
has  sustained  any;  if  she  has  any  proof  to  support  such  an  averment, 
she  may  apply  anew  to  the  judge  of  probate,  and,  if  administration 
should  be  granted,  may  commence  a  new  action.  Whether,  in  such  an 
action  for  special  damages,  she  would  be  allowed  to  recover  full  dam- 
ages, orVould  be  restricted  to  those  which  relate  to  property,  we  do 
not  now  determine. 

Decree  of  the  judge  of  probate  reversed.' 


JENKINS  V.  FRENCH. 

(Supreme   Ck)urt  of  New   Hampshire,    1879.     58  N.   H.    532.) 

Assumpsit.  The  question  reserved  was,  whether  this  action  could 
be  maintained  against  the  administrators  for  unskilful  treatment  of  the 
plaintiff  by  the  deceased. 

Stanley,  J.  The  precise  point  here  presented  has  been  decided  in 
Vittum  V.  Oilman,  48  N.  H.  416,  and  we  find  no  good  reason  to  doubt 
the  correctness  of  that  decision. 

It  is  conceded  that  if  the  action  were  in  tort  it  could  not  be  maintain- 
ed; but  the  plaintiff  claims  that,  being  in  contract,  a  different  rule 
prevails. 

2  See  Wade  v.  Kalbfleisch,  58  N.  Y.  282,  17  Am.  Rep.  250  (1874) ;  Chase  v. 
Fitz,  132  Mass.  359  (1882) ;  Finlay  v.  Chirney.  20  Q.  B.  D.  494  (1888).  Com- 
pare Price  V.  Price,  75  N.  T.  244,  31  Am.  Rep.  4G3  (1878). 

"As  before  intimated,  the  phrase  'the  allegation  of  special  damage'  undoubt- 
edly found  its  way  into  the  books  because  of  extreme  caution  on  the  part  of 
the  learned  judges  who  were  called  upon  to  decide  a  case  arising  for  the 
first  time,  and  all  the  possible  aspects  of  which  it  was  not  deemed  necessary 
to  anticipate."     Ivord,  J.,  in  Chase  v.  Fitz.  132  Mass.  359,  3G4  (1SS2). 

"I  know,  however,  of  no  case  in  which  special  damage  has  been  laid  and 
the  action  has  been  maintained,  and  there  is  no  authority  to  enable  us  to 
decide  how  such  a  case  should  be  dealt  with.  Indeed,  I  have  grave  doubts 
whether  it  would  not  be  the  wisest  course  to  say  that  even  with  special  dam- 
age the  action  will  not  lie,  but  I  am  not  prepared  upon  the  authorities  to 
go  that  length."  Lord  Esher,  M.  R.,  in  Finlay  v.  Chirney,  20  Q.  B.  D.  494, 
499  (1888). 

In  Johnson  v.  Levy,  118  La.  447,  43  South.  46,  9  L.  R.  A.  (N.  S.)  1020,  118 
Am.  St.  Rep.  378  (1907),  it  was  held  that  under  the  Louisiana  Code  one  is  put 
In  such  default  by  a  demand  that  he  comply  with  his  engagement  to  marry 
and  by  a  refusal  on  his  part,  that  his  obligation  thereupon  ceases  to  be  purely 
personal,  becomes  an  obligation  to  respond  in  damages,  and,  being  therefore 
susceptible  of  fulfillment  by  others,  sunives  his  death. 


Ch.    3)  THE   PAYMENT    OF    DEBTS    OF   THE   ESTATBi.  505 

The  general  doctrine,  to  which  this  case  forms  no  exception,  is  that 
actions  for  the  redress  of  personal  injuries  only  do  not  survive,  and 
this  without  regard  to  the  form.  It  is  true,  as  a  general  proposition, 
that  actions  in  form  ex  contractu  survive,  but  this  is  due  rather  to  the 
substance  of  the  action  than  to  its  form.  There  are  actions,  such  as 
arise  from  the  negligence  of  an  attorney,  or  of  a  coach  proprietor, 
where  the  plaintiff  seeks  to  recover  damages,  which  survive,  but  in 
these  the  primary  cause  of  complaint  is  the  injury  to  property  and 
rights  of  property,  and  the  personal  injury  is  incidental. 

The  line  of  demarcation,  separating  those  actions  which  survive  from 
those  which  do  not,  is,  that  in  the  first  the  wrong  complained  of  affects 
primarily  and  principally  property  and  property  rights,  and  the  in- 
juries to  the  person  are  merely  incidental,  while  in  the  latter  the  injury 
complained  of  is  to  the  person,  and  the  property  and  rights  of  prop- 
erty affected  are  incidental.  This  distinction  is  recognized  in  all  the 
authorities.  Broom,  Max.  702;  Com.  Dig.  "Administration,"  B,  15; 
Hambly  v.  Trott,  Cowp.  375 ;  Chamberlain  v.  Williamson,  2  M.  &  S. 
408;  Stebbins  v.  Palmer,  1  Pick.  (Mass.)  71,  11  Am.  Dec.  146;  Smith 
V.  Sherman,  4  Cush.  (Mass.)  408;  Wade  v.  Kalbfleisch,  58  N.  Y.  282, 
285,  287,  17  Am.  Rep.  250;  Lattimore  v.  Simmons,  13  Serg.  &  R. 
(Pa.)  183;   Chitty  PI.  67,  90;   Bouv.  Inst.  2755,  2756. 

In  the  present  case,  there  is  no  suggestion  of  injury  to  the  property 
or  property  rights  of  the  plaintiff.  Her  only  complaint  is  of  her  per- 
sonal injuries  by  the  unskilfulness  of  the  deceased,  and  the  action  can- 
not be  maintained. 


Case  discharged. 


3 


DAVIS  V.  NICHOLS. 

(Supreme  Court  of  Arkansas,  1891.     54  Ark.  358,  15  S.  W.  880.) 

CoCKRiLiv,  C.  J.  Curtner  killed  Nichols  in  a  personal  altercation. 
Nichols'  widow,  as  administratrix  of  his  estate,  brought  this  suit 
against  Curtner  to  recover  damages.  The  complaint  alleged  that  on 
the  22d  day  of  January,  1886,  the  defendant,  W.  H.  Curtner,  wrong- 
fully did  assault,  shoot,  and  wound  the  said  J.  F.  Nichols,  her  intestate, 
whereof  the  said  J.  F.  Nichols  languished,  and  languishing  did  die 
"on  the  23d  day  of  January,  1886."  It  was  further  alleged  that  the 
plaintiff  was  the  widow  and  next  of  kin  of  the  deceased ;  that  as 
such  she  was  damaged  in  a  large  sum,  and  prayed  judgment  for  that 
sum,  and  for  general  relief.  Pending  the  suit,  Curtner  died.  The 
question  is,  can  the  cause  be  revived  against  his  administrator? 

The  action  would  have  abated  at  common  law,  and  must  abate  now, 
unless  the  statute  has  changed  the  common-law  rule.    The  only  provi- 

3  See  Wolf  V.  Wall,  40  Ohio  St.  Ill  (1883) ;  Boor  v.  Lowrey,  103  Ind.  4G8,  3 
N.  E.  151,  53  Am.  Rep.  519  (1885). 


596  PROBATE    AND    ADMINISTRATION.  (Part   3 

sions  of  the  law  bearing  upon  the  question  are  sections  5223-5226, 
Mansf.  Dig.  The  first  two  of  these  sections  are  taken  from  the  act  of 
1838,  and  relate  to  the  revivor  of  actions  ex  delicto;  the  others  are 
from  the  act  of  1883,  and  confer  upon  the  personal  representative  of 
the  deceased  a  right  of  action  for  his  death  when  it  is  caused  by  a 
wrongful  act,  neglect,  or  default,  to  be  prosecuted  for  the  benefit  of 
the  widow  and  next  of  kin.  It  i,s  plain  that  whatever  cause  of  action 
'  J.  F.  Nichols  had  against  Curtner  survived  to  his  administrator  by 
virtue  of  section  5223,  referred  to  above,  and  hereinafter  copied. 
Ward  V.  Blackwood,  41  Ark.  295,  48  Am.  Rep.  41 ;  Davis  v.  Railway 
Co.,  53  Ark.  117,  13  S.  W.  801,  7  L.  R.  A.  283. 

The  terms  of  the  section  are  specific  also  to  the  effect  that  the  cause 
should  survive  in  favor  of  Nichols'  estate  against  Curtner's  adminis- 
trator. It  is  plain,  too,  that,  had  Curtner  lived,  he  would  have  been 
liable  to  an  action  by  Nichols'  administrator  for  the  benefit  of  his  widow 
and  next  of  kin  by  virtue  of  sections  5225,  5226.  But  he  is  dead,  and 
the  question  is,  did  the  court  err  in  permitting  the  cause  to  be  prosecut- 
ed to  judgment  for  the  benefit  of  the  widow  and  next  of  kin?  The 
statute  under  which  that  branch  of  the  suit  was  maintained  authorizes 
an  action  against  a  wrongdoer,  but  it  is  silent  as  to  the  administrator 
of  the  wrongdoer,  and,  unless  the  provisions  of  the  statute  first  cited 
cure  the  defect,  the  action  must  abate  under  the  familiar  rule  of  the 
common  law  that  the  wrongdoer  and  the  wrong  are  buried  together. 

The  question  has  arisen  frequently  under  statutes  which,  like  ours, 
are  modeled  after  Lord  Campbell's  act,  and  it  has  been  decided  in- 
variably against  the  right  of  revivor.  Hegerich  v.  Keddie,  99  N.  Y. 
258,  1  N.  E.  787,  52  Am.  Rep.  25 ;  Moe  v.  Smiley,  125  Pa.  136,  17 
Atl.  228,  3  L.  R.  A.  341 ;  Russell  v.  Sunbury,  37  Ohio  St.  372,  41  Am. 
Rep.  523 ;  Green  v.  Thompson,  26  Minn.  500,  5  N.  W.  376 ;  Hamilton 
V.  Jones,  125  Ind.  176,  25  N.  E.  192.  The  courts  were  driven  to  that 
conclusion  in  the  cases  cited,  because  it  was  found  that  the  common- 
law  rule  as  to  the  survivability  of  actions  had  not  been  changed  by 
legislation;  the  duty  of  the  courts  being  to  declare  the  law,  and  not 
to  make  it. 

The  section  of  the  statute  from  the  act  of  1838,  already  referred  to, 
is  as  follows,  viz.:  "For  wrongs  done  to  the  person  or  property  of 
another  an  action  may  be  maintained  against  the  wrongdoers,  and 
such  action  may  be  brought  by  the  person  injured,  or  after  his  death, 
by  his  executor  or  administrator,  against  such  wrongdoer,  or,  after  his 
death,  against  his  executor  or  administrator  in  the  same  manner  and 
with  like  effect  in  all  respects  as  actions  founded  on  contract."  It  will 
be  observed  that  this  section  provides  that  wrongs  to  persons  or  prop- 
erty shall  be  actionable,  but  that  is  only  an  affirmance  of  tlie  common 
law.  It  does  not,  therefore,  create  a  new  cause  of  action  or  liability. 
It  simply  devolves  an  existing  common-law  right  or  liability  upon  the 
administrator.  To  that  extent  it  abolished  the  common  law.  The  in- 
jury to  the  person  mentioned  in  the  provision  has  been  construed  to 


Ch.   3)  THE   PAYMENT    OF    DEBTS    OF  THE   ESTATE.  597 

mean  a  bodily  injury  or  damage  of  a  physical  character,  and  no  other 
(Ward  V.  Blackwood,  supra),  and  the  injury  to  property,  so  far  as  it 
relates  to  personal  property,  is  such  only  as  was  contemplated  by  the 
statute  of  4  Edw.  III.,  c.  7,  on  the  same  subject  (Russell  v.  Sunbury, 
supra;   Witters  v.  Foster  [C.  C]  26  Fed.-  737). 

Whether  the  wrong  is  a  physical  injury  to  the  person  or  an  injury 
to  property,  the  manifest  intention  is  to  do  nothing  more  than  pre- 
vent a  subsisting  cause  of  action  from  abating  by  the  death  of  a  party. 
The  meaning  of  the  legislature  is  not  changed,  but  may  be  more  plainly 
seen,  by  turning  the  section  into  this  form,  viz. :  "When  one  who  is 
entitled  to  maintain  an  action  for  an  injury  to  his  person  or  property 
dies  the  action  shall  survive  to  his  administrator ;  and,  if  the  wrong- 
doer dies,  it  shall  survive  against  his  administrator."  But  the  cause 
of  action  which  survives  to  the  administrator  upon  the  death  of  one 
who  has  received  a  physical  injury  does  not  inure  to  the  benefit  of  the 
widow  and  next  of  kin.  The  action  which  is  prosecuted  for  their 
benefit  is  not  founded  on  survivorship  but  is  a  new  cause  of  action, 
which  the  death  itself  originates.  It  begins  when  the  action  which  sur- 
vives ends.     Davis  v.  Railway  Co.,  supra. 

Many  cases  illustrating  different  phases  of  the  question  may  be 
found  in  the  authorities  referred  to  in  Davis  v.  Railway  Co.,  supra, 
and  analogies  may  be  drawn  from  the  distinct  causes  of  action  which 
arose  at  common  law  where  an  actionable  injury  to  his  person  was  sus- 
tained by  an  infant  or  servant.  Two  actions  thus  grew  out  of  the 
same  act — one  to  the  infant  or  servant  for  the  personal  injury,  another 
to  the  father  or  master  for  the  consequential  injury,  viz.,  the  loss  of 
service.  The  injury  to  the  infant  or  servant  was  a  wrong  to  his  per- 
son, within  the  meaning  of  the  act  of  1838,  but  it  was  not  a  wrong 
to  the  person  of  the  father  or  master,  within  the  meaning  of  that  act, 
although  the  action  was  based  upon  the  personal  injury  inflicted  upon 
the  infant  or  servant.  Such  was  the  common-law  interpretation  of 
the  father's  or  master's  action.  Waller  v.  Chicago,  11  111.  App.  209 ; 
Marys'  Case,  5  Coke,  201;  Woodward  v.  Walton,  2  Bos.  &  P.  (N.  R.) 
482. 

The  case  of  Hegerich  v.  Keddie,  supra,  is  a  case  in  point  upon  the 
question  for  decision.  This  suit  was  brought  for  damages  for  the 
death  of  the  plaintiff's  intestate  against  the  administrator  of  the  wrong- 
doer. It  seems  that  the  suit  was  for  the  benefit  of  the  estate  as  well 
as  of  the  widow  and  next  of  kin.  The  statute  of  revivor  construed 
by  the  court  was  couched  in  the  same  language  as  section  5223,  Mansf. 
Dig.,  except  that  it  does  not  embrace  injuries  to  the  person,  and  where 
the  word  "property"  appears  in  our  statute,  the  broader  terms  "prop- 
erty rights  or  interests"  are  substituted.  Of  this  statute  the  court  said: 
"The  wrongs  referred  to  in  these  sections  are  such  only  as  are  com- 
mitted upon  the  'property  rights  or  interests'  of  the  testator  or  intestate, 
and  to  the  cause  of  action  for  which  the  executors  acquired  a  deriva- 
tive title  alone.     The  whole  scope  and  design  of  the  statute  is  to  ex- 


598  PROBATE    AND    ADMINISTRATION.  (Part   3 

tend  a  remedy  accrued  to  the  representatives  of  the  deceased  party, 
and  provide  for  the  survival  of  an  existing  cause  of  action." 

i^nd  in  speaking  of  the  remedy  under  a  statute  similar  to  our  act  of 
1883  the  opinion  continues :  "The  cause  of  action  here  provided  for 
does  not  purport  to  be  a  derivative  one,  but  is  an  original  right,  con- 
ferred by  the  statute  upon  representatives  for  the  benefit  of  beneficia- 
ries, but  founded  upon  a  wrong  already  actionable  by  existing  law  in 
favor  of  the  party  injured  for  his  damages.  The  description  of  the 
actionable  cause  seems  to  have  been  inserted  merely  to  characterize 
the  nature  of  the  act  which  is  intended  by  the  statute  to  be  made  ac- 
tionable, and  to  define  the  kind  and  degree  of  delinquency  with  which 
the  defendant  must  be  chargeable  in  order  to  subject  him  to  the  action. 
Whitford  v.  Railroad  Co.,  23  N.  Y.  465.  It  will  be  observed  also  that 
the  statute,  although  creating  a  new  cause  of  action, 'and  passed  for 
the  expressed  purpose  of  changing  the  rule  of  the  common  law  in  re- 
spect to  the  survivability  of  actions,  and  conferring  a  right  upon  rep- 
resentatives which  they  did  not  before  possess,  does  not  undertake, 
either  expressly  or  impliedly,  to  impair  the  equally  stringent  rule  which 
precludes  the  maintenance  of  such  actions  against  the  representatives 
of  the  offending  party.  The  plain  implication  from  its  language 
would,  therefore,  seem  to  be  at  war  with  the  idea  that  the  legislature 
intended  to  create  a  cause  of  action  enforceable  against  as  well  as  by 
representatives." 

What  is  there  said  of  the  injury  to  "property  rights  or  interests"  ap- 
plying only  to  a  derivative  action  is  applicable  as  well  to  an  injury  to 
the  person  under  our  statute.  It  follows,  therefore,  that  the  action 
cannot  be  revived  upon  the  theory  that  it  is  an  injury  to  the  person 
within  the  meaning  of  section  5223.  The  case  just  quoted  is  author- 
ity also  to  the  proposition  that  it  cannot  be  revived,  under  that  section, 
either  as  an  injury  to  the  "property"  of  the  decedent  or  of  his  widow 
and  next  of  kin.  In  Yertore  v.  Wiswall,  16  How.  Prac.  (N.  Y.)  8, 
it  was  held  by  the  Supreme  Court  of  New  York  that  an  action  for  the 
benefit  of  a  widow  to  recover  damages  of  a  common  carrier  for  neg- 
ligently causing  the  death  of  her  husband  was  a  suit  for  an  injury  to 
her  property  interests,  within  the  meaning  of  the  statute,  and  that  the 
action  survived  the  death  of  the  wrongdoer ;  but  the  decision  was  over- 
ruled by  the  court  of  appeals  in  Hegerich  v.  Keddie,  supra,  and  the 
doctrine  of  Yertore  v.  Wiswall  has  been  repudiated,  as  we  are  ad- 
vised, wherever  the  question  has  arisen.  Russell  v.  Sunbury,  supra ; 
Hamilton  v.  Jones,  supra;  Moe  v.  Smiley,  supra;  Ott  v.  Kaufman,  68 
Md.  56, 11  Atl.  580. 

These  cases  clearly  show  that  the  right  of  the  widow  to  recover  dam- 
ages for  the  death  of  her  husband  is  not  based  upon  an  injury  to  prop- 
erty within  the  meaning  of  the  statutes.  It  follows  that  the  action 
prosecuted  for  the  benefit  of  the  widow  abated  upon  the  death  of 
Curtner,  and  that  the  court  erred  in  permitting  the  plaintiff  to  pro- 


Ch.    3)  THE   PAYMENT    OF    DEBTS    OF  THE   ESTATE.  599 

ceed  to  judgment  against  his  administrator  for  her  benefit.     For  thii 
error  the  judgment  must  be  reversed. 

But  the  complaint  stated  a  cause  of  action  in  Nichols  himself,  which 
survived  to  his  administratrix,  and  she  is  entitled  to  prosecute  it  for 
the  benefit  of  his  estate.     Reversed,  and  remanded  for  a  new  trial.* 


Appeal  of  OUAIN. 
(Supreme  Court  of  Pennsylvania,   1854.     22  Pa.  510.) 

LowRiE,  J.°  In  the  distribution  of  the  estate  of  Andrew  M.  Quahi, 
deceased,  the  orphans'  court  allowed  a  claim  for  thirty  months'  ground 
rent  of  a  lot  granted  to  the  decedent  on  perpetual  lease,  and  which,  on 
his  death,  descended  to  his  heirs.  One  year  of  this  rent  became  due 
in  his  lifetime,  and  was  properly  charged.  The  question  relating  to 
that  which  accrued  afterwards  is  not  so  plain. 

We  are  of  opinion  that  the  principle  of  Torr's  Estate,  2  Rawle,  252, 
and  also  the  principle  of  Dickinson  v.  Calahan's  Adm'rs,  19  Pa.  227, 
exclude  this  part  of  the  claim.  Does  a  ground  rent  covenant  survive 
against  executors  and  administrators?  In  its  usual  form  it  binds 
heirs,  executors,  administrators,  and  assigns ;  but  still  this  may  be  sat- 
isfied, as  to  executors  and  administrators,  if  they  pay  the  rent  which 
accrued  in  the  decedent's  lifetime. 

It  is  a  perpetual  covenant,  and  it  is  totally  impracticable  to  require 
it  to  be  performed  by  executors  and  administrators ;  for  their  office 
is  not  perpetual.  If  we  retain  the  perpetuity  of  the  covenant  as 
against  them,  even  with  the  restriction  that  they  are  to  be  liable  only 
when  the  resort  to  the  land  is  inelTectual,  we  still  prevent  all  distribu- 
tion of  the  estate  in  their  hands;  and,  as  all  the  lands  of  the  decedent 
are  assets  for  the  payment  of  debts,  we  constructively  charge  the  rent 
of  a  single  lot  upon  all  his  lands. 

4  See  Murphy  v.  St.  Louis,  I.  M.  &  S.  R.  Co.  (Ark.)  122  S.  W.  636  (1909). 
But  see  Deviue  v.  Healy.  241  III.  34,  89  N.  B.  251  (1909).  where  It  is  held 
that  under  the  Illinois  statutes  the  only  action  which  may  be  maintained  is 
that  for  the  wrongful  death  and  it  survives  the  death  of  the  wrongdoer.  Local 
statutes  should  be  consulted. 

Compare  Garrigan  v.  Huntimer,  20  S.  D.  182,  105  N.  W.  278  (1905),  where  an 
action  against  a  saloon  keeper  and  his  sui'oties  on  a  bond  to  pay  all  damages 
adjudged  to  any  person  under  the  state  statute  for  injuries  by  reason  of  the 
sale  of  liquor  to  persons  at  the  time  intoxicated  or  in  the  habit  of  getting  in- 
toxicated was  held  to  survive  the  death  of  the  saloon  keeper.  In  Hassaurek 
v.  Markbreit,  68  Ohio  St.  554.  67  N.  E.  10G6  (1903),  a  provision  in  a  divorce 
decree  that  the  husband  should  pay  the  divorced  wife  $100  a  month  so  long 
as  she  should  live  and  remain  unmarried  was  held  to  impose  an  obligation 
which  survived  his  death.  See,  also,  Martin  v.  Thison's  Estate,  153  Mich.  516, 
116  N.  W.  1013,  18  L.  R.  A.  (N.  S.)  257,  126  Am.  St.  Rep.  537  (1908) ;  Knapp  v. 
Knapp,  134  Mass.  353  (1SS3). 

5  The  statement  of  facts  is  omitted,  as  is  a  sentence  of  the  opinion  and  the 
statement  of  the  decree  entered. 


600  PROBATE    AND    ADMINISTRATION.  (Part    3 

Nor  will  it  do  to  hold  them  liable  until  the  final  settlement  of  the 
estate.  If  that  suggestion  means  until  all  other  matters  are  ready 
to  be  settled,  then  it  takes  away  at  once  the  character  of  perpetuity  be- 
longing to  the  covenant,  and  makes  its  duration,  as  against  the  per- 
sonal estate,  to  depend  upon  the  accident  of  the  administrator's  dili- 
gence, or  of  the  involved  or  simple  nature  of  the  estate.  If  it  means 
until  the  final  settlement  of  the  whole  estate,  then  this  perpetual  cove- 
nant postpones  it  forever.  This  cannot  be ;  for  the  law  intends  the 
office  of  executor  or  administrator  to  terminate  as  soon  as  possible. 
It  cannot  be  prolonged  on  account  of  perpetual  covenants. 

Such  a  prolongation,  or  such  a  liability,  could  not  have  been  con- 
templated at  the  creation  of  the  ground  rent.  The  grantor  of  the  land 
cannot  be  presumed  to  have  then  placed  any  value  on  such  a  covenant ; 
for  the  personal  covenant  of  the  original  grantee  is  as  nothing  in  a 
series  of  tenants  lasting  for  ever.  The  real  security  is  the  covenant 
running  with  the  land  and  incumbering  it;  and  this  is  the  essential 
reliance  of  the  owner  of  the  rent.  It  is  an  absolute  obligation,  as 
against  the  administrators,  or  it  does  not  bind  them  at  all.  Suppose 
it  absolute ;  then  the  duty  must  be  fully  performed  by  perpetual  pay- 
ment, or  else  it  must  be  discharged  by  a  satisfaction  or  commutation; 
and  in  this  latter  case  the  rent  would  be  discharged  and  the  heir  re- 
leased, a  result  which  is  certainly  unintended.  It  is  a  covenant  pay- 
able, in  the  contemplation  of  the  parties,  out  of  the  profits  of  the  land ; 
and  it  would  be  entirely  unreasonable  that  the  law  should  hold  the  ad- 
ministrator for  the  rent  when  it  gives  the  land  to  the  heir.     *     *     *  « 


LUSCOMB  V.  BALLARD. 

(Supreme  Judicial  Ck)urt  of  Massachusetts,  1855.    5  Gray,  403,  66  Am.  Dec. 

374.) 

Action  of  contract  against  the  executor  of  Nathan  Cook  for  services 
in  taking  care  of  the  house  and  furniture  of  said  Cook  after  his  de- 
cease. There  was  evidence  that  one  Osborn,  named  as  executor  in 
the  will,  but  who  declined  to  accept  the  trust,  employed  plaintiff  to 
take  care  of  the  house;    that  a  special  administrator,  afterwards  ap- 

«  On  tlie  ottier  hand,  of  course,  a  covenant  may  bind  the  executors  or  ad- 
ministrators, though  it  does  not  purport  to  bind  them,  but  only  the  covenantor 
and  his  heirs. 

"This  is  an  action  on  a  covenant  of  warranty,  In  which  the  grantor  cov- 
enanted 'for  himself  and  his  heirs,'  and  It  is  argued  that  under  such  a  cov- 
enant the  executors  are  not  bound,  but  the  heir  only.  It  Is  thought  that,  be- 
cause the  grantor  expi-essly  Included  his  heirs  in  the  covenant,  he  has  im- 
pliedly excluded  his  executors ;  but  this  does  not  follow,  for  by  binding  him- 
self he  binds  his  estate,  so  lar  as  it  is  represented  by  his  executors,  where- 
as the  heirs  could  not  be  bound  witliout  exi)ress  terms."  Lowrie,  J.,  in 
McClure's  Ex'rs  v.  Gamble,  27  Pa.  2S8,  200  (1856). 


Ch.    3)  THE  PAYMENT    OF   DEBTS   OF  THE  ESTATD.  601 

pointed,  did  not  discharge  plaintiff,  but  permitted  him  to  remain.  The 
jury  returned  a  verdict  for  the  plaintiff,  and  defendant  excepted. 

Thomas,  J.  The  jury  have  found  that  the  defendant  neither  caus- 
ed, nor  in  any  way  assented  to,  the  employment  of  the  plaintiff  for  the 
services  for  which  this  suit  is  brought.  He  cannot  therefore  be  charg- 
ed de  bonis  propriis. 

If  not  liable  as  of  his  own  goods,  has  the  estate  in  his  hands  been 
charged  by  the  acts  of  Osborn,  or  the  special  administrator,  so  that 
there  may  be  a  judgment  de  bonis  testatoris?  We  think  not;  but  that 
the  law  is,  that  by  a  promise,  the  consideration  of  which  arises  after 
the  death  of  the  testator  or  intestate,  the  estate  cannot  be  charged,  but 
that  the  executor  or  administrator  is  personally  liable  on  his  contract. 
And  whether  the  amount  is  to  be  repaid  from  the  estate  is  a  question 
for  the  court  of  probate,  in  the  settlement  of  his  account. 

The  old  doctrine  seems  to  have  been,  that,  upon  any  promise  made 
after  the  death  of  the  testator  or  intestate,  the  executor  or  adminis- 
trator was  chargeable,  if  at  all,  as  of  his  own  goods,  and  not  in  his  rep- 
resentative capacity.  Trewinian  v.  Howell,  Cro.  Eliz.  91 ;  Hawkes  v. 
Saunders,  1  Cowp.  289 ;  Jennings  v.  Newman,  4  Term  R.  348 ;  Brig- 
den  v.  Parkes,  2  Bos.  &  P.  434. 

The  more  recent  authorities,  however,  have  settled  that  an  executor 
may,  in  some  cases,  be  sued  in  his  representative  capacity  on  a  promise 
made  by  him  as  executor;  and  a  judgment  had  de  bonis  testatoris. 
But  it  will  be  found  that,  in  these  cases,  that  which  constituted  the 
consideration  of  the  promise  or  the  cause  of  action  arose  in  the  life- 
time of  the  testator.     Dowse  v.  Coxe,  3  Bing.  26 ;  Powell  v.  Graham, 

7  Taunt.  581 ;  Ashby  v.  Ashby,  7  Barn.  &  C.  444.  And  an  action  for 
goods  sold  and  delivered  to  one  as  executor,  or  for  work  done  for  one 
as  executor,  charges  the  defendant  personally,  and  not  in  his  repre- 
sentative character.  Corner  v.  Shew,  3  Mees.  &  W.  350.  See,  also, 
Forster  v.  Fuller,  6  Mass.  58,  4  Am.  Dec.  87;  Sumner  v.  Williams, 

8  Mass.  162,  5  Am.  Dec.  83 ;  Davis  v.  French,  20  Me.  21,  37  Am.  Dec. 
36;  Myer  v.  Cole,  12  Johns.  (N.  Y.)  349. 

In  this  commonwealth,  an  exception  is  made  in  the  case  of  funeral 
expenses  of  the  deceased.  For  these,  the  executor  or  administrator 
may  be  charged  in  his  representative  character,  and  judgment  be  ren- 
dered de  bonis  testatoris.  But  the  case  stands  on  its  peculiar  ground, 
and  is  to  be  limited  to  it.     Hapgood  v.  Houghton,  10  Pick.  154. 

The  modern  English  doctrine  on  this  point  is,  that  if  the  executor  or 
administrator  gives  orders  for  the  funeral,  or  ratifies  or  adopts  the  acts 
of  another  party  who  has  given  orders,  he  makes  himself  liable  per- 
sonally, and  not  in  his  representative  capacity.  Brice  v.  Wilson,  8 
Adol.  &  E.  349,  note;  Corner  v.  Shew,  3  Mees.  &  W.  350;  2  Wil- 
liams, Ex'rs.  1522. 

If  the  contract  of  Osborn,  or  of  the  special  administrator,  did  not 
charge  the  estate,  of  course  the  defendant  can  in  no  form  be  liable. 

In  this  view  of  the  case,  it  is  unnecessary  to  consider  how  far  the 


602  PROBATE    AND    ADMINISTRATION.  (Part   3 

contract  of  Osborn,  who  was  named  executor  in  the  will,  but  declined 
the  trust,  could  bind  the  estate.     If  the  executor  could  not  so  charge 
the  estate,  a  fortiori  one  who  never  accepted  the  trust  could  not. 
Exceptions  sustained.'^ 


TUCKER  V.  WHALEY. 

(Supreme  Court  of  Rhode  Island,  1877.    11  R.  I.  543.) 

It  appears  from  the  bill  of  exceptions  that  one  Perkins  died  without 
leaving  sufficient  food  for  his  cattle.  The  day  after  the  funeral  the 
defendant  and  another  went  to  the  plaintiff  and  obtained  $30  worth 
of  hay  to  feed  the  cattle  of  Perkins.  Subsequently  the  defendant 
was  appointed  administrator  of  Perkins'  estate.  At  the  trial  in  the 
court  of  common  pleas  the  defendant  testified  that  he  gave  the  plain- 
tiff express  notice  when  the  hay  was  bought  that  it  was  for  the  Per- 
kins estate,  and  that  the  plaintiff  must  look  to  the  estate  for  his  pay. 
The  plaintiff  denied  this,  saying  that  he  sold  the  hay  to  the  defendant 
and  did  not  know  where  it  was  going,  though  he  understood  from 
what  was  said  by  the  defendant  and  his  companion  that  the  hay  was 
going  to  Mrs.  Perkins  for  the  stock.  The  judge  instructed  the  jury 
that  it  was  wholly  a  question  of  fact.  If  credit  was  given  to  the  es- 
tate, the  verdict  should  be  for  the  defendant;  if  credit  was  given  to 
the  defendant,  the  verdict  should  be  for  the  plaintiff;  and  the  jury 
should  determine  to  which  party  credit  really  was  given.  To  these 
instructions  the  plaintiff  excepted,  and  after  verdict  for  the  defend- 
ant brought  the  case  to  this  court. 

DurFEe;,  C.  J.  We  think  the  court  below  erred  in  instructing  the 
jury  that,  if  credit  was  given  to  the  estate,  the  defendant  could  not 
be  held.  The  hay  procured  of  the  plaintiff*  was  necessary  for  the  sus- 
tenance of  the  cattle  belonging  to  the  estate,  and  ought  to  be  paid  for 
out  of  the  estate,  as  an  expense  incident  to  the  administration.  But 
the  estate  can  only  be  charged  through  the  administrator,  and  the  de- 
fendant is  the  administrator.  He  acted  for  the  estate  in  procuring  the 
hay,  and,  though  it  might  be  difficult  to  charge  him  if  he  had  always 

7  On  contracts  of  executors  and  administrators,  see  7  Prob.  Rep.  Ann. 
594,  note;  52  Am.  St.  Rep.  118,  note.  That  an  administrator  has  no  au- 
thority to  enter  into  a  binding  contract  for  the  extension  of  time  on  a 
note  executed  by  his  intestate,  so  as  to  release  sureties  thereon,  is  asserted 
in  Daviess  County  Banli  &  Trust  Co.  v.  Wright,  129  Ky.  21,  110  S.  W. 
301,  17  L.  R.  A.  (N.  S.)  1122  (1908.)  On  the  liability  of  a  surety  on  the  bond 
of  an  executor  or  an  administrator  for  a  debt  contracted  in  the  interest  of 
the  estate,  see  22  L.  R.  A.  (N.  S.)  1004.  note. 

On  whether  an  executor  or  administrator  is  liable  in  his  representative 
capacity  for  his  o<wn  torts,  see  51  L.  R.  A.  2G2,  note;  52  Am.  St.  Rep.  129, 
note.  That  an  administrator,  converting  property  belonging  to  another  un- 
der the  belief  that  it  belongs  to  his  intestate,  is  liable  in  his  representative 
capacity,  and  his  sureties  on  his  official  bond  are  also  liable,  is  held  in  Wise- 
man V.  Swain  (Tex.  Civ.  App.)  114  S.  W.  145  (1908). 


Ch.    3)  THE  PAYMENT   OF   DEBTS   OF  THE  ESTATE.  C03 

remained  a  stranger  to  the  estate,  the  credit  being  given  to  the  estate, 
he  did  not  so  remain,  but,  after  he  so  acted,  became  the  administrator, 
and  therefore  may  be  regarded  as  administrator  by  relation  when  he 
so  acted.  Credit  to  the  estate  means,  if  it  means  anything,  credit  to 
the  administrator,  who,  if  he  makes  a  contract  for  the  benefit  of  the 
estate  after  the  intestate's  death,  may  be  personally  sued  thereon, 
Luscomb  V.  Ballard,  Executor,  5  Gray  (Mass.)  403,  405,  66  Am.  Dec. 
374,  and  cases  there  cited.  The  defendant  should  have  paid  the  plam- 
tiff's  claim  and  charged  it  to  the  estate,  and,  the  charge  being  proper, 
would  undoubtedly  have  been  allowed  by  the  court  of  probate.  ^ 

The  exceptions  are  sustained,   and  a  new  trial  is  ordered  in  the 
court  of  common  pleas.     Exceptions  sustained. 


BAUERLE  V.  LONG  et  al. 

(Supreme  Court  of  Illinois,  1900.     187  111.  475,  58  N.  E.  458,  52  L.  R.  A.  643.) 

Phillips,  J.«  Plaintiff,  appellant  here,  by  his  amended  declara- 
tion in  case,  averred  that  appellees,  as  executors  of  the  last  will  of 
John  H.  Schoenberger,  deceased,  by  their  duly  authorized  agent,  one 
O.  W.  Ballard,  agreed  to  sell  and  convey  to  him  certain  real  estate 
situated  in  Cook  county  (describing  it);  that  under  said  last  will  said 
executors  were  authorized,  ordered,  and  directed  to  sell  and  dispose 
of  said  real  estate  upon  such  terms  as  to  them  should  seem  most  ad- 
vantageous, at  either  public  or  private  sale.     *     *     * 

The  breach  charged  is  the  failure  of  defendants  to  furnish  a  war- 
ranty deed,  abstract,  etc.,  and  the  damages  claimed  are  $100,000,  con- 
sisting of  the'  $5,000  earnest  money  paid,  and  the  balance  on  account 
of  the  loss  in  not  obtaining  the  property,  which  property  plaintiff  avers 
to  be  worth  $340,000.  To  this  declaration  a  demurrer  was  sus- 
tained.    *     *     * 

The  executors  derived  no  power  under  the  will  of  their  testator  to 
bind  his  estate  by  a  warranty  deed.  The  law  gave  them  no  such  right 
and  authority  as  executors.  No  action  can  therefore  be  maintained 
against  them  in  their  representative  capacity  for  a  breach  of  war- 
ranty, or  for  a  failure  to  execute  a  warranty  deed,  when  they  have  no 
authority  vested  in  them  to  make  the  -same.  In  Vincent  y.  Morrison, 
Breese,  227,  the  administrators  undertook  to  covenant,  in  a  deed  of 
land  sold  to  pay  debts  of  their  intestate,  that  the  land  was  free  from 
incumbrances,  and  the  court  say  (page  231):  "In  relation  to  cove- 
nants, the  general  rule  is  that  an  administrator  has  no  power  to  charge 
the  effects  of  the  intestate  by  any  contract  originating  with  himself; 
and  it  seems  from  the  current  of  decisions  that  his  contracts  in  the 
course  of  his  administration,  or  for  the  debts  of  his  intestate,  render 

8  Part  only  of  the  opinion  is  given. 


604  PROBATE    AND    ADMINISTRATION.  (Part    3 

him  liable  de  bonis  propriis"— citing  Sumner  v.  Williams,  8   Mass. 
162,  5  Am.  D€C.  83.     *     *     * 

In  Austin  v.  Munro,  47  N.  Y.  366,  it  is  said :    "The  rule  must  be  re- 
garded as  well  settled  that  the  contracts  of  executors,  although  made 
in  the  interest  and  for  the  benefit  of  the  estate  they  represent,  if  made 
upon  a  new  and  independent  consideration,  as  for  services  rendered, 
goods  or  property  sold  or  delivered,  or  other  consideration  moving  be- 
tween the  promisee  and  the  executors  as  promisors,  are  the  personal 
contracts  of  the  executors,  and  do  not  bind  the  estate,  notwithstanding 
the  services  rendered  or  goods  and  property  furnished,  or  other  con- 
sideration moving    from  the  promisee,   are    such   that   the   executors 
could  properly  have  paid  for  the  same  from  the  assets,  and  been  al- 
lowed for  the  expenditure  in  the  settlement  of  their  accounts.     The 
principle    is    that    an    executor    may    disburse    and    use    the    funds 
of  the  estate  for  purposes  authorized  by  law,  but  may  not  bind  the 
estate  by  an  executory  contract,  and  thus  create  a  liability  not  founded 
upon  a  contract  or  obligation  of  the  testator.     Ferrin  v.  Myrick,  41 
N.  Y.  315;  Reynolds  v.  Reynolds,  3  Wend.  244;  Demott  v.  Field,  7 
Cow.   58;  Myer  v.   Cole,  12   Johns.  349.     The   rule  is  too  well  es- 
tablished in  this  state  to  be  questioned  or  disregarded,  and  any  de- 
parture from  it  would  be  mischievous."    The  rule  is  well  understood 
and  generally  accepted  that  executors  are  not  chargeable,  as  such,  on 
their  executory  contracts.     Their  acts  are  subject  to  the  control  of  the 
court  appointing  them ;  and  this,  notwithstanding  they  act  under  pow- 
ers conferred  by  will.     Here  the  will  gives  them  no  power  to  warrant 
their  testator's  title,  which  was  all,  as  executors,  they  could  convey, 
and  a  purchaser  would  only  take  whatever  title  the  testator  had.  *   *  * 
The  circuit  court  did  not  err  in  sustaining  a  demurrer  to  plaintiff's 
declaration.     *     *     *     Judgment  affirmed.® 

9  "We  entertain  no  doubt  that,  where  the  executors  of  the  win  of  a  de- 
ceased person,  empowered  by  the  terms  of  the  will  to  sell  his  real  estate, 
enter  into  an  executory  contract  for  such  sale,  performance  of  such  contract 
may  be  enforced  in  equity  at  the  suit  of  the  purchaser.  The  contract  of  sale 
Is,  "in  effect,  an  execution  of  the  power,  and  confers  upon  the  purchaser  an 
equitable  title  to  the  land  sold,  and  the  court  will  compel  the  executors  to 
perfect  the  title  by  a  conveyance,  where  the  contract  is  fair  and  for  a  suffi- 
cient consideration,  and  there  is  no  default  or  laches  on  the  part  of  the 
I)urchaser."  Ilapallo,  J.,  in  Bostwick  v.  Beach,  103  N.  Y.  414.  421.  9  N.  E. 
41,  42  (18S6).  So,  where  the  executors  are  empowered  by  will  to  sell,  it 
t^eems  tliat  a  contract  by  them  to  pay  a  real  estate  commission  on  such  sale 
will  bind  them  as  executors.  Ingham  v.  Ryan,  18  Colo.  App.  347,  71  Pac. 
89(»  (1903).  On  warranties  by  executors  or  administrators  on  the  sale  of  per- 
sonal property,  see  78  Am.  St.  Rep.  193,  194,  note. 

\V\ivr.K  or  Statute  of  Limitations  by  Executor  or  Administrator. — 
Dii  tiif>  power  of  the  exe<Mit<>r  or  .TdiniTiistrator  to  waive  the  defense  of  the 
■tatute  of  limitations,  see  52  Am.  St.  Rep.  123,  note;  78  Am.  St.  Rep.  188, 
citing  cases  pro  and  con.  In  Haskell  v.  Manson,  200  Mass.  599,  8G  N.  E. 
937.  128  Am.  St.  Rep.  4r)2  (ItMV.J).  one  of  the  executors  of  a  father,  who 
had  given  five  nonnegotiable  promissorj-  notes  to  his  son,  the  executor 
of  the  father  being  also  administrator  of  the  son's  estate  and  entitled  as 
next  of  kin  to  one-half  of  the  son's  estate,  sought  as  executor  of  the  father's 
est-ate  to  waive  the  defense  of  the  statute  of  limitations  to  the  notes  by  a 
written  acknowledgment  of  indebtedness  and  of  the  payment  of  $1  on  eacb 


Ch.   3)  THE   PAYMENT   OF    DEBTS   OF  THE  ESTATE.  605 


SECTION  3.— THE  PRESENTATION  OF  CLAIMS 


CROSS  et  al.  v.  LONG. 
(Supreme  Court  of  Kansas.  1903.     66  Kan.  293,  71  Pac.  524.) 

BuRCH,  J.^°  *  *  *  'j^he  only  important  question  for  determina- 
tion is  whether  appearance  in  probate  court  at  a  hearing  upon  a  claim 
ag-ainst  an  estate,  and  consent  to  the  allowance  of  such  claim  by  one 
of  two  joint  executors,  without  notice  to  or  the  concurrence  of  the 
other,  is  sufficient  to  bind  the  estate.  In  Clark's  Adm'rs  v.  Parkville 
&  G.  R.  R.  Co.,  5  Kan.  654,  the  record  disclosed  a  notice  to  both  ad- 
ministrators, but  proof  of  service  of  such  notice  upon  only  one  of 
them;  and  the  syllabus  of  the  case  is  as  follows:  "Service  on  one  of 
two  administrators,  of  notice  of  the  presentation  of  a  claim  against  the 
decedent's  estate  in  the  probate  court,  is  sufficient." 

Since  the  only  purpose  of  notice  is  to  advise  the  party  of  the  hear- 
ing, notice  may  be  waived,  and  appearance  at  the  hearing  without  ob- 
jection is  equivalent  to  such  waiver.  And  there  can  be  no  distinction 
between  executors  and  administrators  in  this  respect.  Whil?  it  is 
true  that  in  many  matters  the  joint  action  of  all  the  representatives 
of  an  estate  is  essential,  the  presentation  of  a  claim  against  the  estate 
to  one  of  tliem  is  by  the  law  of  many  states  sufficient.  8  A.  &  E. 
Encycl.  of  L.  §  1074.  This  is  for  the  reason  that  all  the  executors 
are  regarded  in  law  as  one  person,  and  as  having  joint  and  entire  au- 
thority over  the  whole  estate,  so  that  the  act  of  any  one  of  them  in 
respect  to  its  administration  is  the  act  of  all.  The  decision  in  Clark's 
Adm'rs  v.  Parkville  &  G.  R.  R.  Co.,  supra,  has  furnished  the  basis  of 
probate  procedure  in  such  cases  since  1865,  without  legislative  inter- 
vention ;  and  it  should  not  now  be  disturbed,  even  if  its  doctrine  were 
not  entirely  satisfactory.  Since,  under  its  authority,  notice  to  one  rep- 
resentative is  sufficient  to  bind  the  estate,  it  must  follow  that  the  ap- 
pearance and  consent  of  one  alone  is  likewise  sufficient. 

The  judgment  of  the  district  court  is  therefore  affirmed. 

note  joined  in  by  a  second  executor,  but  against  the  objection  of  the  third 
executor.  To  a  bill  brought  by  the  administrator  of  the  son's  estate  against 
the  executors  of  the  father's  estate,  the  protesting  executor  pleaded  the 
statute  of  limitations.  The  court  decided  that,  because  the  executor  who 
was  next  of  kin  to  the  son  was  thereby  to  profit  out  of  the  acknowledg- 
ment, it  could  be  set  aside  by  any  one  interested,  even  if  othei-wise  the  ac- 
knowledgment would  be  all  right.  The  court  pointed  out  that  "it  has  never 
been  decided  in  ^Massachusetts  that  a  payment  made  by  one  of  two  executors 
against  the  objection  of  his  coexecutor  upon  a  note  which  was  barred  by  the 
statute  in  the  lifetime  of  the  testator  would  revive  the  note,  nor  has  it  been 
so  decided  in  England.  The  Lords  Justices  of  the  Court  of  Appeal,  in  a 
late  case,  preferred  to  leave  this  subject  open  for  future  consideration. 
Midgly  V.  Midgly,  [1893]  3  Ch.  282." 
10  Part  only  of  the  opinion  is  given. 


«' 


606  PROBATE    AND    ADMINISTRATION.  (Part   3 

HALL  V.  GREENE. 

(Supreme  Court  of  Rhode  Island,  1902.     24  R.  I.  286,  52  Atl.  1087.) 

Douglas,  J.  In  this  case  the  plaintiff,  as  administrator,  sued  the 
defendant  in  assumpsit  for  the  price  of  a  chattel  sold  by  his  intestate. 
Defendant  pleaded  in  set-off  a  claim  against  the  intestate  of  a  char- 
acter which  would  have  been  available  in  set-off  if  the  action  had  been 
brought  by  the  intestate  in  his  lifetime.  To  the  introduction  of  evi- 
dence in  support  of  this  claim  the  plaintiff  objected  on  the  ground 
that  the  claim  had  not  been  presented  to  the  administrator  for  allow- 
ance or  rejection  as  required  by  statute.  The  objection  was  allowed 
by  the  court,  the  evidence  was  excluded,  and  the  defendant  duly  ex- 
cepted to  the  ruling,  and  now  alleges  it  as  ground  for  a  new  trial. 

We  think  the  ruling  would  have  been  correct  if  it  had  been  made  up 
on  a  replication  to  the  plea.  The  right  of  set-off  at  common  law  is 
purely  statutory.  The  effect  of  the  statute  is  to  allow  the  trial  together 
of  two  cross-actions  between  the  same  parties,  and  each  claim  must 
stand  or  fall  upon  its  own  merits.  Our  statute  does  not  permit  this 
unless  the  claim  presented  in  set-off  is  one  which  the  holder  may  pres- 
ently sue  in  his  own  name.  In  the  case  of  mutual  claims  between  an 
insolvent  estate  and  a  creditor  or  a  debtor,  as  we  have  recently  decided 
in  the  case  of  Troup  v.  Bank,  24  R.  I.  377,  53  Atl.  122,  set-off  takes 
place  by  operation  of  law  upon  principles  of  equity,  and  independently 
of  the  statute ;  but  the  considerations  which  govern  in  that  case  have 
no  application  to  an  estate  which  is  solvent.  Upon  a  similar  provision 
to  the  one  we  are  considering,  the  Supreme  Court  of  New  Hampshire 
held  that  a  claim  not  presented  to  the  administrator  could  not  be  al- 
lowed in  set-off.     Jones  v.  Jones,  21  N.  H.  219, 

We  think,  however,  that  by  joining  issue  upon  the  plea  in  set-off 
the  plaintiff  has  waived  his  rights  to  the  objection.  The  defendant's 
claim,  so  pleaded,  is  to  all  intents  and  purposes  an  action  against  the 
administrator.  It  was  prematurely  brought,  and,  if  the  administrator 
had  pleaded  the  fact,  must  have  been  abated.  Instead  of  urging  the 
matter  in  abatement,  he  joins  issue  and  goes  to  trial  on  the  merits  of 
the  claim.  The  question  which  came  before  the  court  was  then  one 
of  evidence,  and  it  is  not  contended  that  the  evidence  offered  was  not 
pertinent  to  the  issue  joined.  It  was  too  late  to  change  the  pleadings 
after  the  case  had  been  opened  to  the  jury. 

New  trial  grantcd.^^ 

u  See  Moore  v.  Gould,  151  Cal.  723.  91  Pac.  616  (1907);  Cohn  v.  Carter, 
92  Miss.  027.  40  South.  00  (190S).  In  Helms  v.  Harclerode,  65  Kan.  73G,  70 
Pac.  800  (1902),  It  is  held  that,  where  a  claim  is  allowed  against  an  in- 
solvent estate  in  favor  of  a  debtor  of  the  estate,  the  debtor,  when  sued  for 
bis  debt,  may  set  off  the  full  amount  of  his  allowed  claim.  But  in  Van 
Dusen  v.  Topeka  Woolen  Mill  Co.,  74  Kan.  437,  87  Pac.  74  (1900),  it  is  held 
tJiat  a  debtor  to  an  insolvent  estate  may  not  set  ofC  against  his  debt  a 
claim  against  the  estate  bought  by  him  at  a  discount  after  decedent's  death. 


Ch.   3)  THE   PAYMENT    OF   DEBTS    OF  THE  ESTATE. 


607 


MUTUAL  BENEFIT  LIFE  INS.  CO.  v.  HOWELL. 

(Court  of  Chancery  of  New  Jersey,  1S80.    32  N.  J.  Eq.  146.) 

Bill  to  foreclose.  On  final  hearing  on  bill  and  answer. 
The  Chancellor  [Theodore  Runyon].  The  question  presented 
for  decision  is,  whether  the  complainant  is  entitled  to  a  decree  for  de- 
ficiency against  the  administrators  of  the  estate  of  John  S.  Smith,  de- 
ceased. The  liability  of  the  estate  to  a  decree  for  deficiency  is  based 
on  an  assumption,  by  the  intestate,  of  the  complainant's  mortgage,  in 
a  deed  from  the  mortgagor  to  him  for  the  mortgaged  premises,  and 
a  bond  given  to  the  complainant  by  the  intestate,  with  condition  to  pay 
to  the  complainant  the  mortgage  debt  in  one  year  from  the  date  of 
the  bond,  February  24,  1876,  with  interest.  The  intestate  died  in 
March,  1878,  and  the  bill  was  filed  in  November  of  that  year.  The 
intestate,  at  the  time  of  his  death,  lived  in  Morris  county.  The  ad- 
ministrators took  an  order,  April  6,  1878,  to  limit  creditors  in  nine 
months  from  that  date.  The  nine  months  expired  in  January,  1879. 
The  complainant  has  never  presented  any  claim  against  the  estate, 
unless  the  filing  of  the  bill  for  foreclosure,  praying  a  decree  for  de- 
ficiency, may  be  so  considered. 

By  their  answer,  the  defendants  claim  that  they  have  complied 
with  the  requisites  of  the  statute  as  to  publication  of  the  order,  and 
that  the  complainant,  not  having  presented  its  claim,  according  to  law, 
within  the  time  limited  by  the  order,  is  barred  of  all  action  against 
them  therefor.  The  complainant  might  have  presented  its  claim  un- 
der the  order  to  limit  creditors.  It  had  the  intestate's  bond,  a  legal 
liability  for  the  payment  of  the  debt,  in  addition  to  the  equitable  claim 
arising  upon  the  assumption.  The  filing  of  the  bill  cannot  be  regarded 
as  equivalent  to  doing  so. 

The  statute  provides  that  when  an   order  to  bring  in  debts  and 

• 
On  set-off  or  counterclaim  as  affecting  estates  of  deceased  persons,  see  8 
Prob.    Rep.   Ann.   331,    note. 

"A  furtlier  objection  is  made  ttiat  the  items  set  out  in  the  answer  as 
a  payment  on  the  note  were  never  presented  to  the  probate  court  as  a 
claim  against  the  estate  of  the  deceased,  and  allowed  by  the  court.  If  these 
Items  were  pleaded  as  a  set-off,  this  objection  would  be  good;  but  such  is 
not  the  case.  The  items  [four  for  work  and  labor  at  an  agreed  price] 
are  set  up  as  payments  made  upon  the  note,  it  being  specifically  alleged 
that  Hass  [plaintiffs  intestate]  agreed  to  credit  these  several  items  on  the 
note  as  a  payment  of  so  much  cash."  Duffie,  C.  in  Parker  v.  Wells,  68  Neb. 
647    649.  94  N.  W.  717,  718  (1903).      See  Printy  v.  Cahill,  235  111.   534,   So 

N.   E.   7.53   (1908).  .....  .... 

While  courts  of  law  can  recognize  only  claims  presented  in  time,  it  has 
been  held  that  an  allowance  by  the  probate  court  of  a  claim  presented  after 
the  time  fixed  by  statute  is  not  an  error  going  to  the  jurisdiction.  O'Brien 
V.  Larson,  71  Minn.  371,  74  N.  W.  148  (1S9S). 

On  whether  an  executor  or  administrator  is  in  such  privity  with  a  legatee, 
distributee,  or  creditor  that  he  may  assert  a  personal  defense  of  the  latter 
to  a  claim  against  the  estate,  see  8  L.  R.  A.  (N.  S.)  212,  note. 

On  the  binding  effect  on  the  administrator  of  the  settlement  by  the  sole 
distributee  of  a  claim  belonging  to  the  estate,  see  11  L.  R.  A.  (N.  S.)  148. 


608  PROBATE    AND    ADMINISTRATION.  (Part   3 

claims  against  the  estate  of  any  decedent  shall  be  made,  all  claims  and 
demands  of  the  creditors  of  the  deceased  shall  be  presented  in  writing, 
specifying  the  amount  claimed  and  the  particulars  of  the  claim,  and 
shall  be  verified  under  oath,  or  the  bringing  in  of  the  same  shall  be  of 
no  effect.  Rev.  p.  764.  It  also  provides  that  any  creditor  who  shall 
have  neglected  to  bring  in  his  debt,  demand  or  claim  within  the  time 
limited,  shall,  by  the  final  decree  to  be  made  after  the  expiration  of 
the  limited  period,  be  forever  barred  of  his  action  against  the  executor 
or  administrator,  unless,  after  the  final  settlement  of  the  account  of 
the  executor  or  administrator,  such  creditor  shall  find  some  other 
estate  not  accounted  for;  in  which  case  he  shall  be  entitled  to  have 
his  debt,  demand  or  claim  paid  thereout,  or  to  a  ratable  proportion 
thereof  in  case  other  creditors  shall  be  barred  of  their  debts,  demands 
or  claims.     Id. 

Not  having  complied  with  the  provisions  of  the  law,  the  complain- 
ant is  absolutely  barred  of  its  action  against  the  administrators.  Ryan 
V.  Flanagan's  Adm'x,  38  N.  J.  Law,  161.^2 

Where  an  executor  or  administrator  is  sued  in  a  foreclosure  suit 
for  deficiency,  unless  it  appears  to  be  clear  that  a  decree  should  be 
made  against  him,  requiring  him  to  pay  the  deficiency  as  soon  as  it 
shall  have  been  ascertained,  and  consequently  that  no  rights  of  other 
creditors  will  be  prejudiced  by  such  decree  and  the  execution  thereof, 
there  will  be  no  decree  against  him.  The  decree,  if  made  at  all,  un- 
less where  the  executor  or  administrator  is  liable  at  law  or  in  equitv 
to  the  payment  of  the  deficiency,  will  be  for  the  payment  of  the  de- 
ficiency only  in  a  due  course  of  administration.  The  statute  (Rev. 
p.  119)  authorizes  this  court  to  make  a  decree  for  deficiency  against 
any  party  to  the  suit  who  is  liable  at  law  or  in  equity  for  the  payment 
thereof,  and  unless  the  executors  or  administrator  is  liable  at  law  or 
in  equity  to  pay  the  deficiency,  there  will  be  no  decree.  Leonard  v. 
Morris,  9  Paige  (N.  Y.)  90;  Jones  on  Mort.  §  1717. 

Of  course,  where  it  appears  that  the  action  against  the  executor  or 
administrator  is  barred,  no  decree  will  be  made  against  him.  Rhodes 
V.  Evans,  Clarke's  Ch.  (N.  Y.)   169. 

There  will  be  none  in  this  case.^^ 


12  But  In  Clayton  v.  Dinwoodey,  33  Utah,  251,  93  Pac.  723  (1908),  it  was 
hold  that  the  commcfnceinent  of  a  suit  by  the  filing  of  a  verified  complaint 
containing  all  the  averments  required  in  a  presented  claim  and  the  service 
of  the  complaint  upon  the  executors  within  the  time  fixed  for  presenting 
claims  operated  as  a  presentation  of  the  claim.  Compare  Moss  v.  Mosley, 
148  Ala.  1(;8.  41  South.  1012  (1000).  The  cases  on  the  point  are  collected  in  14 
Am.  vV:  Eng.  Ann.  Cas.  931,  note. 

IS  On  the  effect  on  the  mortgage  of  a  failure  to  present  a  claim,  see  Town- 
send  v.  Thompson,  24  Colo.  411,  51  Pac.  433  (1897) ;  Athearn  v.  Ryan,  154 
C"al.  554.  98  Pac.  390  (1908).  Kirman  v.  Powning,  25  Nev.  378,  60  Pac 
8P,i.  01  Pac.  1090  (1900);  Mathew  v.  Mathevv,  138  Gal.  334,  71  Pac.  344 
(1J)03).     But  see  Bush  v.  Adams,  22  Fla.  177  (1886). 

Extent  of  Claim  of  Secuked  Creditor  Having  Insufficient  Security. 
— "Now  the  chief  thing  that  we  have  to  notice  in  this  region  is  an  old  rule 


Ch.   3)  THE  PAYMENT    OF    DEBTS    OF  THE   ESTATE.  609 

THOMAS  V.  CHAMBERLAIN. 
(Supreme  Court  of  Ohio,  1883.     39  Ohio  St.  112.) 

McIlvaine,  J.^*  *  *  *  f  he  only  question  which  remains  to 
be  considered,  as  arising  upon  the  demurrer  to  the  sixth  defense,  as 
it  appears  to  us,  is  that  the  plaintiff's  claim  was  not  allowed  by  Thomas 
as  executor  of  Truex,  within  the  period  of  four  years  after  his  giving 
bond  as  such  executor. 

During  the  whole  of  this  period  Thomas  was  executor  of  the  cred- 
itor as  well  as  of  the  debtor  estate.     In  such  double  relation  he  could 


of  equity  about  the  rights  of  a  creditor  who  has  a  security,  but  an  insuffi- 
cient security,  for  his  debt.  A.  dies  owing  X  £2,000,  and  his  debt  is  secured 
by  a  mortgage  of  Blackacre.  X.  realizes  his  security.  He  sells  Blackacre, 
but  the  sale  produces  only  £1,000.  Well,  of  course,  X.  is  still  entitled  to  be 
paid  another  £1,000,  and  if  A.'s  estate  is  sufficient  for  the  payment  of  all 
his  debts  then  X.  will  get  that  other  £1,000.  But  suppose  that  A.'s  estate 
is  insolvent;  X.  will  certainly  be  entitled  to  something  besides  the  £1,000 
that  he  got  out  of  Blackacre.  It  would,  I  think,  be  natural  to  say  that 
X.'s  right  is  to  prove  against  the  testator's  estate  a  debt  of  £1,000,  and  take 
a  dividend,  whatever  it  may  be,  say  five  shillings  in  the  pound,  proportional 
to  that  debt  of  £1,000;  for  £1,000  is  what  is  due  to  him  after  Blackacre 
has  been  sold.  Now  that  was  the  rule  to  which  the  Gouvt  of  Bankruptcy 
came  in  the  administration  of  the  insolvent  estates  of  living  persons.  Its 
rule  was  thie:  The  creditor  with  an  insufficient  security  may  do  one  of 
two  things:  He  may  abandon  his  security  (abandon  Blackacre)  and  prove 
for  his  whole  debt  (prove  for  £2,000),  or  he  may  realize  his  security  and 
prove  for  what  still  remains  due  to  him  after  such  realization.  Thus 
In  the  case  I  have  put  he  may  pocket  £1,000,  the  price  of  Blackacre,  and 
then  claim  a  dividend  on  the  other  £1,000  which  still  remains  due  to  him. 
But  the  Court  of  Chancery  in  its  administration  of  the  estates  of  dead  per- 
sons came  to  another  rule,  usually  known  as  the  rule  in  Mason  v.  Bogg 
[(1837)  2  My.  &  Cr.  443].  The  mortgagee  may  realize  his  security,  and  may 
also  prove  against  the  general  estate  for  the  whole  of  his  debt,  provided 
always  that  he  is  not  to  get  more  than  twenty  shillings  in  the  pound.  Thus 
in  our  case  X.  might  keep  the  £1,000  that  he  gets  from  the  sale  of  Black- 
acre,  and  then  he  may  also  prove  against  the  general  estate  of  the  dead  man 
for  the  whole  £2,000;  but,  of  course,  he  is  not  to  get  in  all  more  than  the 
whole  debt,  the  whole  £2,000  that  is  due  to  him.  This  rule  may  seem  to  you 
unjust,  and  it  has  seemed  unjust  to  Parliament.  It  seems  to  favor  the  se- 
cured creditor  unduly  at  the  expense  of  unsecured  creditors.  However  you 
can  see  that  there  was  a  certain  logic  in  it.  The  mortgagee  has  two  distinct 
rights,  the  right  in  personam,  the  personal  right  against  the  debtor,  and 
the  real  right,  the  right  in  Blackacre.  Why  should  he  not  use  both  of  these? 
Why  should  the  fact  that  he  has  used  one  of  them  hamper  him  when  he 
desires  to  make  good  the  other?  He  sells  Blackacre.  Well  and  good;  but 
the  dead  man  owed  him  £2.000.  Why  should  he  not  prove  against  the  dead 
man's  estate  for  the  whole  of  this  debt?  However,  it  is  needless  now  to 
consider  whether  or  no  there  was  much  justice  in  this  reasoning ;  for  a  sec- 
tion of  the  judicature  act  of  1875 — section  10 — declared  in  effect  that  in  the 
administration  of  the  estates  of  dead  persons  the  bankruptcy  rule  was  to 
prevail  as  between  the  secured  and  the  unsecured  creditors."  Maitland's 
Equity  and  the  Forms  of  Action  at  Common  Law,  194,  195. 

For  the   conflict  of  authority   in  the  United   States  on  this  point,   see  2 

■^^1     ■  —  -■  ■   ■  '  I.      I .    ■      ■  ■  ■  III.  .  ..  —-—■—■■■  -.1..  .^  ■  I . "■'■■■- 

14  The  statement  of  facts  is  omitted,  and  part  only  of  the  opinion  is  given 
Cost.  Wills— 39 


610  PROBATE    AND    ADMINISTRATION.  (Part   3 

not  deal  or  contract  with  himself,  but  whenever  funds  belonging  to  the 
debtor  estate  and  applicable  to  the  payment  of  the  creditor  estate  came 
into  his  hands,  he  was  bound  to  treat  the  same  as  assets  of  the  cred- 
itor estate,  to  the  extent  of  the  indebtedness.  If  mistakes  occur  in 
making  transfer  of  such  accounts,  they  may  be  corrected  on  settle- 
ment of  his  final  accounts  with  the  probate  court.  No  formal  "allow- 
ance" of  the  claim  was  necessary ;  but  if  it  were,  the  credits  endorsed 
upon  the  notes  during  the  double  relation,  sufficiently  show  that  such 
allowance  was  made. 

We  find  no  error  in  the  record  of  the  court  of  common  pleas,  for 
which  the  judgment  of  that  court  should  have  been  reversed.^^ 


Woerner's  Americfin  Law  of  Administration  (2d  Ed.)  §  40S.  Local  statutes 
should  be  consulted. 

If  in  the  case  of  Mutual  Benefit  Life  Ins.  Co.  v.  Howell,  supra,  there  had 
been  no  bond,  the  court  would  probably  have  held  the  claim  contingent  and 
not  provable  until  the  existence  of  a  deficiency  was  established.  Terhune 
V.  White,  34  N.  J.  Eq.  98  (1881). 

OoMTiNGENT  Claijis.— On  coutinsent  claims,  see  2  Woerner's  American 
Law  of  Administration  (2d  Ed.)  §  394;  58  L.  R.  A.  82,  note.  See,  also.  Zol- 
liclioffer  v.  Seth.  reported  post,  p.  692.  That  in  some  states  contingent 
claims  must  be  presented  within  the  time  for  presenting  other  claims,  or 
they  will  be  barred,  though  the  estate  has  not  been  closed,  see  Barto  v. 
Stewart.  21  Wash.  605.  59  Pac.  480  (1899).  If  a  contingent  claim  becomes 
absolute  within  the  time  for  presenting  claims,  and  is  not  presented,  it  is 
barred.  Jorgenson  v.  Larson,  85  Minn.  134,  88  N.  W.  439  (1901).  That  a 
claim  pavable  at  the  death  of  a  particular  person  is  not  contingent,  see 
Farris  v.'  Stoutz,  78  Ala.  130  (1884) ;  Brown's  Ex'r  v.  Dunn's  Estate,  75  Vt. 
2(>4,  55  Atl.  364  (1903).  In  the  latter  case  it  is  said  (75  Vt.,  at  page  269, 
55  Atl.,  at  page  366):  "The  fact  that  the  time  of  payment  is  uncertain 
does  not  make  a  claim  contingent  when,  as  in  this  case,  the  time  of  payment 
is  sure  to  arrive  at  some  future  day.  A  contingent  claim,  within  the  mean- 
ing of  V.  S.  2517,  is  one  that  cannot  be  proved  as  a  debt  before  the  com- 
missioners, or  allowed  by  them,  because  the  liability  is  dependent  upon  some 
future  event  which  may  or  may  not  happen,  and  therefore  cannot  be  deter- 
mined within  the  time  allowed  for  proving  claims  before  the  commissioners." 
So,  also,  the  mere  fact  that  an  accounting  is  necessary  to  determine  the 
amount  due  does  not  make  the  claim  contingent.  Davis  v.  Davis,  137  Wis. 
640,  no  N.  W.  334  (1909). 

15  But  see  State  v.  Bidlingmaier,  26  Mo.  483  (1858).  See  Brown  v.  Green, 
181  Mass.  109,  (J3  N.  E.  2,  92  Am.  St.  Rep.  404  (1902),  which  holds  that  the 
executor  need  not  present  his  own  claim  against  the  estate  within  the  time 
fixed  for  presentation  of  claims,  but  may  retain  assets  to  pay  it  and  account 
accordingly.  See.  also.  Sanderson's  Adm'rs  v.  Sander.son,  17  Fla.  820  (1880). 
In  some  states  the  matter  is  governed  by  special  statute.  See  Farrow  v, 
Mevin.  44  Or.  496,  75  Pac.  711  (1904).  In  still  others  the  administrator  must 
present  a  claim  to  himself  or  be  barred,  even  though  there  is  no  statute 
sjiecifjcally  mentioning  his  case.  In  re  Bright's  Estate,  157  Mich.  220,  121 
N.  W.  74S  (1909).  In  In  re  Ring's  Estate,  1.32  Iowa.  216,  109  N.  W.  710  (1906). 
the  court  refused  to  relieve  the  administrator  from  his  failure  to  file  his 
claim  through  lack  of  knowledge  that  it  was  required.  The  court  said:  VHis 
mistake  was  purely  one  of  law,  and  due  wholly  to  his  own  neglect.  His  only 
excuse  Is  that  he  did  not  think  it  neces.'^ary  to  file  claims.  Surely  that  is  not 
an  equitable  circumstance  which  will  justify  the  relief  sought."  It  should 
be  noted  that  "the  common-law  rule  allowing  executors  and  administrators 
to  retain  for  their  own  debts  in  preference  to  other  creditors  is  repudiated, 
It  is  believed,  in  all  the  states."    2  Woerner's  American  Law  of  Administra- 


Ch.   3)  THE  PAYMENT    OF    DEBTS   OF  THE   ESTATE.  Gil 


SECTION  3.— PRIORITIES  BETWEEN  CLAIMS 


"At  common  law  the  personal  representative  was  required  to  pay 
the  claims  against  the  estate  of  the  decedent  in  the  following  order: 
(1)  The  necessary  funeral  expenses,  the  extent  of  which  was  fixed  by 
the  condition  and  rank  of  the  decedent;  (2)  the  necessary  expenses  of 
the  administration;  (3)  debts  of  record  due  to  the  crown;  (4)  debts  of 
record  due  to  subjects,  which  included  judgments,  decrees,  statutes, 
and  recognizances;  (5)  debts  by  specialty,  founded  upon  a  valuable 
consideration,  and  debts  for  rent ;  ( 6)  simple  contract  debts,  based  up- 
on valuable  consideration;  (7)  voluntary  bonds  or  covenants;  (8) 
other  voluntary  debts."     8  Am.  &  Eng.  Ency.  Law  (2d  Ed.)  1034.^' 


LEWIS  et  al  v.  RUTHERFORD. 
(Supreme  Court  of  Arkansas,  1903.     71  Ark.  218,  72  S.  W.  373.) 

Petition  by  Georgiana  A.  Lewis  and  others  for  an  order  requiring 
R.  B.  Rutherford,  administrator  of  the  ancillary  estate  of  G.  W.  Lewis, 
deceased,  to  pay  over  to  the  administratrix  of  the  principal  estate,  in 
another  state,  so  much  of  the  assets  in  his  hands  as  would  give  all 
creditors  of  the  deceased  an  equal  per  cent,  of  their  debts.  From  an 
order  dismissing  the  petition,  the  petitioners  appeal.     Affirmed. 

Appellants  presented  to  the  probate  court  of  Sebastian  county  a  pe- 
tition in  which  they  state:  *  *  *  That  the  probate  court  of  the 
Ft.  Smith  district  of  Sebastian  county,  Arkansas,  had  allowed  $3,- 
676.16  against  the  ancillary  estate;  that  the  probate  court  of  Barry 
county,  Missouri,  had  allowed  debts  amounting  to  $6,789.04  against 
the  principal  estate,  and  the  assets  in  the  hands  of  the  primary  admin- 
istratrix, which  included  all  of  the  property  belonging  to  the  estate, 
aside  from  that  in  the  hands  of  said  R.  B.  Rutherford,  amounted  to 
$868.53.  *  *  *  Petitioners  asked  that  out  of  the  assets  in  the 
hands  of  R.  B.  Rutherford,  ancillary  administrator,  a  sufficient  amount 

tion  (2d  Ed.)  §  395.  On  the  common-law  right  of  retainer,  see  Davies  v. 
Parry  [1899]  1  Ch.  602. 

On  whether  a  provision  in  a  will  for  the  payment  of  a  debt  dispenses  with 
the  necessity  of  presenting  or  proving  the  claim,  see  15  Am.  &  Eng.  Ann.  Cas. 
624.  note. 

The  United  States  as  Claimant. — In  U.  S.  v.  Bean  (D.  C.)  120  Fed.  (19 
(1903),  it  was  held  that  the  United  States,  unless  specially  named,  is  not 
governed  by  the  state  statute  requiring  claims  to  be  first  presented  to  the 
executor  or  administrator  for  allowance  before  action  can  be  maintained 
upon  them.     See,  also,  Pond  v.  Dougherty,  6  Cal.  App.  686,  92  Pac.  1035  (1907). 

la  In  the  United  States  the  order  of  priority  has  been  much  simplified 
by  statutes.    The  local  statutes  should  be  consulted. 


612  PROBATE    AND    ADMINISTRATION  (Part   3 

be  set  aside  and  turned  over  to  G.  A.  Lewis,  the  primary  administra- 
trix, to  give  to  all  of  the  lawful  creditors  an  equal  per  cent,  of  their 

debts. 

To  this  petition  R.  B.  Rutherford  interposed  the  followmg  demurrer, 
to  wit :  "Now  comes  administrator  herein,  and  demurs  to  the  petition 
of  Georgiana  Lewis  et  al.,  and  for  cause  thereof  says  that  *  *  *  it 
appears  from  said  petition  that  petitioners  reside  in  the_  state  of  Mis- 
souri, in  which  state  the  primary  or  domiciliary  administration  upon 
the  estate  of  the  said  G.  W.  Lewis,  deceased,  is  pending,  and  that  the 
defendant  administrator  herein  is  the  ancillary  administrator  of  the 
said  estate  in  Arkansas,  and  that  there  are  debts  due  creditors  residing 
in  this  state  from  the  said  estate,  more  than  there  are  assets  in  this 
administration  sufficient  to  pay  ofif  and  discharge,  so  that,  after  the  pay- 
ment of  the  claims  of  the  resident  creditors,  there  will  not  be  any  es- 
tate remaining  in  the  hands  of  this  administrator." 

The  court  sustained  the  demurrer  and  rendered  judgment  dismissing 

the  petition.  ,     . 

Wood,  J.^^  *  *  *  There  are  authorities  which  hold  that  it  is 
the  duty' of  an  ancillary  administrator  to  retain  the  funds  in  his  hands 
for  a  pro  rata  distribution,  according  to  the  laws  of  the  state  of  his 
administration,  among  the  citizens  thereof,  having  regard  to  all  the 
assets,  both  in  the  hands  of  the  principal  administrator  and  the  an- 
cillary ^administrator,  and  having  regard,  also,  to  the  whole  of  the 
debts  which  by  the  laws  of  either  state  are  payable  out  of  those  as- 
sets. Dawes,  Judge,  etc.,  v.  Head,  3  Pick.  (Mass.)  128  ;  Davis  v.  Estey, 
8  Pick.  (Mass.)  476;  Miner  v.  Austin,  45  Iowa,  221,  24  Am.  Rep.  763. 
Other  authorities  hold  that  it  is  the  duty  of  the  ancillary  administra- 
tor to  satisfy  in  full  the  creditors  of  his  jurisdiction,  even  though  the 
principal  administration  be  insolvent.  In  other  words,  that  it  is  the 
duty  of  the  ancillary  administrator  to  protect  only  home  creditors. 
Wharton,  Con.  Laws,  §  640 ;  Minor,  Con.  Law,  p.  250 ;  Smith  v.  Bank, 
5  Pet.  518,  8  L.  Ed.  212. 

Our  own  court,  in  Shegogg  v.  Perkins,  34  Ark.  117,  said:  "The 
only  duty  devolving  upon  the  [ancillary]  administrator  was  to  collect 
the  assets  here,  and  to  appropriate  so  much  of  the  avails  of  the  same 
to  the  payment  of  debts  due  to  our  citizens  as  would  be  authorized 
by  the  general  solvency  or  insolvency  of  the  estate  of  the  deceased, 
and  remit  the  balance  to  the  place  of  primary  administration."  This 
seems  to  recognize  the  former  of  the  above  views  as  correct.  But 
this  language  of  our  court  was  dictum;  the  question  in  Shegogg  v. 
Perkins  being  whether  the  ancillary  administrator  in  Arkansas  could 
allow  the  claim  of  a  Tennessee  creditor,  as  in  the  case  of  a  local  or 
Arkansas  creditor.  The  question  of  insolvency  was  not  involved. 
We  are  not  called  upon  in  this  proceeding  to  decide  between  these  con- 

tTThe  statement  of  facts  Is  abbreviated,  and  part  only  of  the  opinion  is 
gtveii. 


Ch,    3)  THE  PAYMENT   OP   DEBTS    OF  THE   ESTATE.  613 

flicting  views.  Because,  even  if  it  be  conceded  that  the  view  as  ex- 
pressed in  Shegogg  v.  Perkins  as  to  the  duty  of  the  ancillary  admin- 
istrator be  correct,  still  we  are  clearly  of  the  opinion  that  the  probate 
court,  with  its  limited  jurisdiction,  is  not  the  forum  to  determine  the 
question  of  the  general  solvency  or  insolvency  of  the  estate  of  the  de- 
ceased, and  the  questions  of  the  priorities  and  preferences  under  the 
varying  laws  of  the  different  jurisdictions  that  might  arise  between  the 
creditors.  The  rules  of  procedure  and  the  machinery  of  the  probate 
court  are  not  sufficient  for  this  purpose.     *     *     * 

We  are  not  called  upon  to  decide  whether  appellants  would  have 
rights  in  a  court  of  equity,  and  we  do  not  decide  that  question.  Af- 
firmed.^* 


SECTION  4.— PRIORITIES    OF   CREDITORS   OVER   LEGA- 
TEES AND  NEXT  OF  KIN 


SIMMONS  V.  BOLLAND. 
(High  Court  of  Chancery,  1817.     3  Mer.  547.) 

By  indenture  of  lease  dated  the  33d  of  July  1798,  the  mayor  and 
commonalty  of  Canterbury  demised  to  Simmons  (one  of  the  aldermen 
of  their  corporation),  his  executors,  administrators,  etc.,  for  thirty 
years,  at  a  certain  rent,  and  under  covenants  for  payment  of  rent  and 
taxes,  and  for  repairs,  etc.,  on  nonperformance  of  all  or  any  of  which 
covenants,  it  was  declared  that  the  lease  should  be  void,  and  a  power 
of  re-entry  was  reserved. 

Simmons,  the  lessee,  by  his  will,  gave  all  his  real  estates,  and  all  his 
leaseholds  and  personal  estate,  to  the  defendant  Bolland  and  another 
(whom  he  also  appointed  his  executors),  upon  trust  to  sell;  and  after 
payment  thereout  of  debts  and  legacies,  to  invest  the  produce  in  their 
names  upon  certain  trusts,  subject  to  which  he  gave  the  entire  residue 

18  In  Ramsay  v.  Ramsay,  196  111.  179.  63  N.  E.  618  (1902),  it  was  held  that 
creditors  of  an  Insolvent  Illinois  decedent,  who  had  received  part  of  their 
claims  from  the  proceeds  of  property  of  the  estate  in  Missouri,  must  de- 
duct such  amount  before  sharing  in  the  assets  in  Illinois.  The  Missouri 
and  Illinois  statutes  on  the  matter  are  there  considered.  A  nonresident  cred- 
itor will  be  allowed,  either  through  comity  (McKee  v.  Dodd,  152  Cal.  637,  93 
Pac.  854,  14  L.  R.  A.  [N.  S.]  780,  125  Am.  St.  Rep.  82  [1908]),  or  of  right,  under 
the  privileges  and  immunities  clause  of  the  United  States  Constitution 
(Goodall  v.  Marshall,  11  N.  H.  88,  95,  35  Am.  Dec.  472  [1840]),  to  present 
his  claim,  whether  the  administration  is  primary  or  ancillary.  Compare  In 
re  Colburn's  Estate,  153  Mich.  206,  116  N.  W.  986,  126  Am.  St.  Rep.  479 
(1908).  That  claims  are  barred  under  the  statutes  of  nonclaim  of  one  state 
is  immaterial,  if  they  are  not  barred  under  such  statutes  of  the  state  where 
the  claims  are  presented.  Wilson  v.  Hartford  Fire  Ins.  Co.,  164  Fed.  817, 
90  C.  C.  A.  593  19  L.  R.  A.  (N.  S.)  553  (1908).  See,  also,  19  L.  R.  A.  (N. 
a.)  '553,  note. 


614  PROBATE    AND    ADMINISTRATION.  '  (Part   3 

of  his  estate  to  the  plaintiff  on  his  attainment  of  the  age  of  twenty- 
five  years. 

The  testator  died  in  1807,  leaving  the  plaintiff  his  son,  then  a  minor. 
The  trtistees  and  executors  proved  the  will,  possessed  themselves  of 
the  whole  of  the  testator's  estate  real  and  personal,  and  paid  the  debts 
and  legacies  without  resorting  to  a  sale  of  the  real  estate  or  of  the  lease- 
holds, into  the  possession  of  which  (including  the  premises  demised  by 
the  said  indenture  of  lease)  the  plaintiff,  on  his  attaining  twenty-five,  en- 
tered ;  at  which  time  also,  the  entire  residue  of  the  personal  estate  was 
transferred  to  him  by  the  executors,  except  a  bond  for  £1,000  from 
the  mayor  and  commonalty  of  Canterbury,  under  their  corhmon  seal, 
to  the  testator ;  and  a  sum  of  £800,  5  per  cents.,  which  were  still  retained 
by  them  out  of  the  surplus,  and  for  the  recovery  of  which  the  present 
bill  was  filed. 

To  this  bill  the  defendant,  the  surviving  trustee  and  executor,  by  his 
answer  submitted  that  he  was  entitled  to  retain  the  property  in  ques- 
tion, "for  the  purpose  of  protecting  himself  from  any  claim  which 
might  be  made  against  him  as  devisee  in  trust  and  executor  of  Simmons 
deceased,  in  respect  of  rent  due  or  thereafter  to  accrue  due  for  the 
premises  demised  by  the  said  indenture,  or  of  the  present  or  any  future 
breach  or  nonperformance  of  any  of  the  covenants  therein  contained, 
the  payment  of  which  rent,  and  performance  of  which  covenants,  the 
defendant  was  advised  he  was  liable  to  under  the  said  indenture."  and 
had  actually  then  lately  received  a  notice  to  that  effect  from  the  cor- 
poration. He  at  the  same  time  admitted  that  there  were  then  no  sub- 
sisting breaches  of  covenant  in  respect  of  which  he  was  so  liable,  and 
that  no  rent  was  then  due  or  in  arrear  for  the  premises,  but  insisted 
that,  under  the  circumstances,  he  was  entitled  to  retain  as  aforesaid,  in 
respect  of  any  future  contingent  demands,  to  which  the  notice  given 
by  the  corporation  also  extended. 

The  Master  of  the  Rolls  [Sir  Wm.  Grant].  The  equitable  re- 
lief sought  in  this  case  depends  upon  a  legal  question,  whether  an 
executor  can  safely  make  payment  of  legacies,  or  deliver  over  a  residue 
while  there  is  an  outstanding  covenant  of  his  testator,  which  has  not 
yet  been,  and  never  may  be  broken.  This  question  was  very  much  dis- 
cussed in  a  case  (of  Eeles  v.  Lambert)  reported  both  by  Styles  and  by 
Aleyn  (Styles,  37,  54,  73;  Aleyn,  38),  the  ultimate  judgment  in  which 
is  not,  however,  stated  by  either.  There  is  also  a  case  of  Nector  and 
Sharp  V.  Gennet,  in  Cro.  Eliz.  466,  where  the  same  question  arose, 
though  in  a  dift'erent  shape.  A  legatee  sued  in  the  ecclesiastical  court 
for  his  legacy.  The  executors  pleaded  that  the  testator,  who  was 
keeper  of  a  prison,  was  bound  in  an  obligation  to  the  sheriff  (to  an 
amount  exceeding  the  entire  value  of  his  property)  for  the  safe  keeping 
of  the  prisoners  committed  to  his  charge;  which  obligation  had  become 
forfeited  in  consequence  of  a  judgment  against  the  sheriffs  on  an  action 
for  an  escape ;  and  the  executors  had  therefore  nothing  in  their  hands 
to  answer  the  demand.     This  plea  was  disallowed,  whereupon  a  pro- 


Ch.    3)  THE  PAYMENT    OF   DEBTS    OF  THE   ESTATE.  C15 

hibition  was  sued,  which  being  demurred  to,  the  defendant  prayed  a 
consultation. 

Upon  this  the  principal  question  was,  whether  the  escape  was  such 
that  the  sheriff  was  suable  in  respect  of  it?  for,  if  not,  the  bond  was  not 
forfeited;  and,  if  the  bond  was  not  forfeited,  then  it  was  said  to  be 
plain  that  the  legacy  should  be  first  paid ;  and,  to  this  purpose,  it  was 
argued,  that  by  the  civil  law,  the  legatary  must  enter  into  a  bond,  to 
make  restitution  if  the  obligation  should  be  afterwards  recovered,  so 
there  was  no  inconvenience  to  any.  To  which  the  whole  court  agreed, 
and  determined  that  it  was  no  plea,  unless  the  obligation  were  for- 
feited. Coke  said,  "The  difference  is,  when  the  obligation  is  for  the 
payment  of  a  lesser  sum  at  a  day  to  come,  it  shall  be  a  good  plea 
against  the  legatee  before  the  day ;  for  it  is  a  duty  maintenant,  which 
is  in  the  condition  (as  9  Edw.  IV,  12).  But  otherwise  it  is,  where  a 
statute  or  obligation  is  for  the  performance  of  covenants,  or  to  do  a 
collateral  thing.  There,  until  it  be  forfeited,  it  is  not  any  plea  against 
a  legatee ;  for  peradventure  it  shall  never  be  forfeited,  and  may  lie  in 
perpetuum,  and  so  no  will  should  be  performed."  The  majority  of  the 
judges  being  of  opinion  that  there  was  no  forfeiture,  a  consultation 
was  awarded,  the  effect  of  which,  as  far  as  it  regards  the  present  ques- 
tion, was  to  leave  the  spiritual  court  to  proceed  according  to  theii  own 
established  course — namely,  to  compel  the  legatee  to  give  securit}-  to 
refund  the  legacy,  in  case  of  the  executors  becoming  afterwards  liable 
to  be  sued  upon  the  bond.  In  the  argument  of  Eeles  v.  Lambert,  this 
case  is  noticed  by  Rolle,  Justice:  "It  was  Nectgr  and  Sharp's  Case, 
38  Eliz.  that  legacies  ought  to  be  paid  conditionally,  viz.  to  be  restored 
if  the  covenant  should  be  broken."  Styles,  56. 

In  Hawkins  v.  Day,  Amb.  160,  Lord  Hardwicke  makes  a  distinction 
between  simple  contract  debts  and  legacies ;  and  seems  to  entertain  a 
clear  opinion  that  even  an  unbroken  covenant  renders  it  unjustifiable 
for  an  executor  to  pay  a  legacy.  I  see  no  reason  to  doubt  the  accuracy 
of  Ambler's  report  of  this  case;  for  his  statement  is  found  to  cor- 
respond with  the  register's  book,  and  although,  in  the  order  overruling 
the  exceptions,  particular  legacies  are  specified,  yet  it  appears,  by  a  ref- 
erence which  has  been  made  to  the  master's  report,  that  they  were  the 
only  legacies  stated  to  have  been  paid ;  and  they  must  have  been  paid 
before  the  forfeiture  by  breach  of  the  covenants.  Lord  Hardwicke 
stating  the  question  with  respect  to  them  to  be,  "Whether  payment  ot 
the  assets,  before  there  was  any  breach  of  the  condition,  ought  to  be 
allowed  as  a  good  administration  of  the  effects."    See  note  annexed.^* 

In  this  state  of  the  authorities,  it  would  be  too  much  for  me  to  or- 
der the  executor  to  transfer  and  pay  without  having  security  given  him 
in  case  of  judgment  being  recovered  against  him  at  law,  for  any  future 
breach  of  the  covenant.  No  decree  that  I  can  make  will  bind  the  cor- 
poration of  Canterbury,  or  protect  the  executor  against  their  demand, 

19  The  note  referred  to  is  omitted. 


616 


PROBATE    AND    ADMINISTRATION,  (Part    3 


if  the  bond  should  hereafter  be  forfeited.  All  that  I  can  do,  is  to  order 
the  funds  to  be  made  over  on  the  plaintiff  giving  a  sufficient  indem- 
nity ;  and  it  must  be  referred  to  the  master  to  settle  the  terms  of  such 
security. 


In  re  KING. 

MELLOR   V.    SMITH   AUSTRALIAN   LAND    MORTGAGE   & 

AGENCY  CO. 

(Supreme  Court  of  Judicature,  Chancery  Division.     [1907]  1  Ch.  72.) 

Neville,  J.^**  In  this  case  the  executors  seek  the  direction  of  the 
court  to  distribute  the  estate  among  the  residuary  legatees  notwith- 
standing the  claim  of  a  limited  company  in  respect  of  unpaid  shares, 
no  calls  having  been  made.  It  appears  to  be  the  practice  to  direct  such 
distribution  notwithstanding  the  existence  of  contingent  claims,  and, 
as  the  law  stands,  I  think  it  is  clear  that  the  order  of  the  court  in  such 
a  case  exonerates  the  executors  from  ultimate  liability  to  the  creditor. 
The  practice  appears  to  have  grown  up  gradually  and  in  a  manner 
which  is  not  to  my  mind  altogether  satisfactory.  One  cannot  help 
seeing  that  the  rights  of  absent  parties  of  whose  claim  the  court  has 
notice  may  be  prejudicially  affected  by  the  order.  Nor  are  the  au- 
thorities themselves  in  a  very  satisfactory  state,  but  I  think  the  out- 
come is  reasonably  clear. 

The  first  case  I  have  been  referred  to  is  Fletcher  v.  Stevenson,  3 
Hare,  360,  before  Wigram,  V.  C.  In  that  case  the  Vice  Chancellor 
directed  that  the  whole  of  the  residuary  estate  of  the  testator  and  the 
income  should  be  retained  for  the  purpose  of  providing  a  fund  to  sat- 
isfy, if  necessary,  future  claims  for  rent.  The  Vice  Chancellor  says 
this  (3  Hare,  370):  "The  widow's  claim  is  opposed  by  two  parties: 
First,  by  the  executor;  and,  secondly,  by  the  legatees  in  remainder. 
So  far  as  the  executor  is  personally  concerned,  he  would,  I  apprehend, 
be  safe  in  acting  under  the  direction  of  the  court;  but  in  considering 
what  degree  of  protection  is  due  to  the  absent  covenantee,  I  am  bound 
to  consider  whether  the  court,  taking  the  fund  out  of  the  hands  of 
the  executor,  can  do  less  than  it  would  expect  the  executor  to  do  if 
the  fund  remained  in  his  hands."  That  is  the  ground  on  which  the 
Vice  Chancellor  refused  to  part  with  the  fund,  and  I  must  say  that 
what  the  Vice  Chancellor  says  seems  to  me  of  very  great  force. 

The  next  case  cited  in  which  the  matter  came  before  the  court  is 
Dean  v.  Allen,  20  Beav.  1.  The  side  note  .is:  "Where  an  estate  is 
administered  and  the  residue  is  paid  over  under  an  order  of  the  court, 
the  executor  will  be  protected,  and  a  creditor  will  not  afterwards  be 
allowed  to  sue  him  at  law.    The  executors  of  a  lessee  held  entitled  to 

20  The  statement  of  facts  is  omitted,  and  the  opinion  on  the  merits  only 
is  given. 


Ch.    3)  THE   PAYMENT    OF    DEBTS   OF  THE  BSTATD.  617 

no  further  indemnity  against  the  covenants  than  the  personal  indemnity 
of  the  residuary  legatees."  That  case  is  a  clear  authority  upon  the 
point  that  the  direction  of  the  court  exonerates  the  executors  from  lia- 
bility to  the  creditor,  but  it  is  not  very  satisfactory  because  it  provides 
for  indemnity  to  the  trustees,  and  does  not  point  out  or  apparently 
recognize  any  inconsistency  between  the  doctrine  that  the  executors  are 
entirely  exonerated  from  liability  and  the  provision  of  indemnity  for 
them. 

The  point  again  came  before  Sir  John  Romilly  in  Waller  v.  Barrett, 
24  Beav.  413,  and  there  the  Master  of  the  Rolls  gives  reasons  for 
what  he  states  to  be  the  practice  which  are  at  all  events  intelligible. 
He  reiterates  the  doctrine  of  exoneration.  [His  Lordship  read  the 
headnote  to  that  case,  and  continued:]  The  Master  of  the  Rolls  says 
(34  Beav.  418):  "I  am  at  a  loss  to  conceive  on  what  principle  a  debt 
which  may  arise  hereafter,  but  which  is  not  now  existing,  is  to  be 
treated  on  a  footing  different  to  an  existing  debt.  The  creditor,  al- 
though advertised  for,  may  be  abroad  at  the  time,  he  may  be  ignorant 
of  the  whole  proceedings,  and  yet,  if  he  do  not  come  in  and  claim,  his 
only  remedy  in  this  court  is  against  the  legatees.  In  the  case  of  March 
v.  Russell  (1837)  3  My.  &  Cr.  31,  41,  Lord  Cottenham  made  this  ob- 
servation :  'Formerly,  when  legacies  were  paid,  it  seems  to  have  been 
the  practice  to  oblige  the  legatee  to  give  security  to  refund,  in  case 
any  other  debts  were  discovered.  That  practice  has  been  discontin- 
ued, but  the  legatee's  liability  to  refund  remains.  The  creditor  has  not 
the  same  security  for  the  refunding  as  when  the  legatee  was  obliged 
to  give  security  for  that  purpose,  but  he  has  the  personal  liability  of 
the  legatee.'  I  hold  that  this,  in  fact,  is  the  principle  which  governs 
these  cases,  that  it  is  for  the  purpose  of  giving  a  greater  degree  of 
security  to  the  executor  (in  case  a  creditor  should  arise  thereafter), 
that  the  court  requires  what  is  called  'an  indemnity  to  the  executor' 
to  be  given ;  but  if  he  has  stated  the  facts  to  the  court,  and  has  acted 
under  its  direction,  I  apprehend  that  his  indemnity  is  complete  and 
perfect,  so  far  as  he  is  concerned." 

That  is  an  intelligible  account  of  the  origin  of  the  practice.  I  am 
surprised  that  Lord  Romilly  should  have  professed  himself  to  be  at  a 
loss  to  conceive  on  what  principle  a  contingent  debt  can  be  differen- 
tiated from  an  existing  debt;  but  he  does  class  the  two  together  and 
declare  that  the  order  of  the  court  exonerates  the  executor  on  distribu- 
tion of  the  assets.  Further,  one  cannot  help  feeling  that  the  reason 
given  for  the  provision  of  the  indemnity  is  unsatisfactory,  because  it 
is  curious  that  an  indemnity  of  this  kind  should  be  held  to  give  a 
greater  degree  of  security  to  the  executor  than  the  order  of  the  court, 
which  exonerates  him  altogether.  However,  there  it  is,  and  that  is 
something  upon  which  one  can  proceed,  whether  the  grounds  upon 
which  it  is  founded,  as  stated  by  the  learned  judge,  commend  them- 
selves to  one's  ideas  of  the  general  practice  of  the  court  or  not. 


618  PROBATE    AND    ADMINISTRATION.  (Part   3 

The  next  two  cases  to  which  I  was  referred  are  both  before  Kin- 
dersley,  V.  C.  In  the  first,  Smith  v.  Smith,  1  D.r.  &  Sm.  384,  the 
doctrine  of  exoneration  was  referred  to,  and  it  was  held  the  executors 
were  not  in  that  case  entitled  to  an  indemnity,  and  the  Vice  Chancel- 
lor says  (1  Dr.  &  Sm.  387)  :  "Supposing  there  has  been  no  dealing 
with  the  leaseholds  by  the  executors,  would  they  have  been  now  en- 
titled to  any  indemnity?  In  following  the  previous  decisions,  I  have 
held  that  executors  have  such  right ;  but  I  concur  with  the  Master  of 
the  Rolls  in  thinking  that  where  an  executor  fairly  represents  every- 
thhig  to  the  court  the  decree,  directing  him  to  deal  with  and  distribute 
the  property,  must  operate  as  a  complete  indemnity  to  him;  and  that 
therefore  an  executor  cannot  need  any  other  indemnity.  It  has,  how- 
ever, been  suggested,  that  there  ought  to  be  a  fund  set  apart  by  way 
of  indemnity,  not  for  the  benefit  of  the  executor,  but  for  the  benefit 
of  the  lessor,  in  case  of  there  being  at  any  future  time  a  breach  of 
covenant.  Now  if  the  lessor  is  entitled  to  any  such  equity  as  this, 
it  would  seem  to  follow  that  he  might  come  to  this  court  to  assert 
such  equity,  and  to  ask  the  court  to  set  apart  a  sum  of  money  out  of 
the  testator's  assets,  to  provide  for  the  event  of  a  future  breach  of 
covenant;  for  which  he  might  be  entitled  to  recover  damages.  But 
it  has  been  held  that  a  lessor  cannot  be  heard  in  this  court  to  maintain 
any  such  right.  In  truth  the  whole  doctrine  on  the  subject  is  in  a 
very  unsatisfactory  state;  and  does  not  seem  to  be  founded  on  sound 
principles." 

The  case  came  again  before  the  same  Vice  Chancellor  in  Dodson 
V.  Sammell,  1  Dr.  &  Sm.  575.  In  that  case  a  fund  which  had  been 
set  apart  to  indemnify  executors  was  ordered  to  be  paid  out  to  the 
residuary  legatee,  such  indemnity  since  the  passing  of  Lord  St.  Leon- 
ards' Act  (22  &  23  Vict.  c.  35)  being  no  longer  necessary  as  a  pro- 
tection to  the  executor  The  Vice  Chancellor  said  (1  Dr.  &  Sm. 
578)  :  "With  respect  to  the  other  ground,  that  it  is  required  for  the 
benefit  of  the  lessor,  it  is  true  that  in  Fletcher  v.  Stevenson,  3  Hare, 
360,  Wigram,  V.  C,  thought  that,  although  the  decree  of  the  court 
would  be  a  sufficient  indemnity  to  the  executor,  it  was  right  to  set 
apart  a  sufficient  part  of  the  assets  for  the  protection  of  the  covenan- 
tee ;  meaning,  of  course,  that  the  covenantee  had  that  equity.  Now,  if 
the  covenantee  had  such  an  equity,  it  would  necessarily  follow  that  he 
could  file  a  bill  to  enforce  it.  But  in  King  v.  Malcott,  9  Hare,  692, 
Turner,  V.  C,  decided  that  there  was  no  such  equity."  With  great 
respect.  I  venture  to  think  that  the  inference  which  the  learned  Vice 
Chancellor  draws  in  that  case  is  not  a  necessary  inference,  and  that 
the  reason  given  by  Wigram,  V.  C,  for  retaining  a  security  for  the 
contingent  creditor  was  an  intelligible  reason  which  was  not  open  to 
the  observation  made  by  Kindersley,  V.  C,  in  that  case.  However, 
from  thnt  time  on  it  seems  to  have  been  the  practice  not  to  retain  any 
part  of  the  assets. 


Ch.  3)        THE  PAYMENT  OF  DEBTS  OF  THE  ESTATE.  619 

Then  after  a  considerable  number  of  years— I  have  not  been  re- 
ferred to  any  case  decided  between  1861  and  190-i— the  case  came  be- 
fore the  late  Byrne,  J.,  in  In  re  Nixon  (1904)  1  Ch.  638.  The  head- 
note  in  that  case  is :  "On  making  an  order  for  the  distribution  of  the 
estate  of  a  testator  amongst  his  residuary  legatees,  the  court  will  not 
set  aside  any  part  of  his  assets  to  indemnify  his  executors  against 
possible  liabilities  which  may  arise  in  respect  of  leases  formerly  held 
by  him,  unless  there  is  privity  of  estate  between  the  executors  and  the 
lessors."  That  I  understand  to  apply  to  all  cases  where  there  is  not 
a  personal  liability  on  the  part  of  the  executors  to  pay  out  of  their 
own  moneys  the  claim  of  the  creditor.  The  learned  judge  went 
through  the  cases  and  came  to  the  conclusion  stated  m  the  headnote, 
and  I  think  that,  having  regard  to  the  authorities,  it  is  necessary  for 
me  to  proceed  on  the  same  footing.  ■ 

It  is  pointed  out  in  one  of  the  cases  that  the  exoneration  must,  or  at 
all  events  may,  only  operate  in  the  case  of  an  administration  action. 
There  may  be  a  distinction  in  the  protection  afforded  by  a  direction 
of  the  court  taken  under  Order  LV,  R.  3,  without  administration.  It 
is  obvious  that  the  court  cannot  direct  distribution  of  the  estate^  so 
long  as  it  is  not  satisfied  that  there  are  no  longer  any  immediate  claims 
outstanding.  I  think,  therefore,  there  should  be  an  inquiry  as  to 
debts. 

NORMAN  V.  BALDRY. 
(High  Court  of  Chancery,  1834.    6  Sim.  621.) 

On  the  marriage  of  William  Baldry  with  Ann  Freston,  he,  together 
with  Simon  Baldry,  executed  a  joint  and  several  bond,  dated  the  7th 
of  October,  1802,  to  W.  Lewis,  conditioned  for  the  payment,  by  the 
heirs,  executors  or  administrators  of  William  Baldry,  within  three 
months  after  his  decease,  of  £490  to  Ann  Freston,  in  case  she  should 
survive  him ;  but,  in  case  she  should  die  in  his  lifetime,  then  for  the 
payment  by  him,  of  £200  within  six  months  after  the  death  of  Ann 
Freston,  to  the  persons  therein  named. 
•  Simon  Baldry  died  in  March,  1820.  Ann  Baldry  died  in  April, 
1831,  leaving  her  husband  her  surviving. 

William  Baldry  having  become  insolvent^  the  persons  entitled  to 
the  £200  under  the  bond,  filed,  in  1832,  a  creditor's  bill  against  the 
executors  of  Simon  Baldry. 

The  executors,  in  their  answer,  said  that  they  had  applied  the  whole 
of  Simon  Baldry's  personal  estate  in  payment  of  his  debts  and  legacies, 
and  that  they  never  heard  of  the  bond  until  October,  1831.  ^ 

The  Vice  Chancellor  [Sir  Lancelot  Shadwell]  said  that  he 
had  always  understood  the  law  to  be  that  an  executor  who  had  paid 
simple  contract  creditors  of  his  testator,  a  bond  being  in  existence  but 
not  then  payable,  ought  to  be  allowed  those  payments ;  but  that  an  ex- 


620  PROBATE    AND    ADMINISTRATION.  (Part    3 

ecutor  was  liable,  if  he  paid  the  legatees,  notwithstanding  he  had  no 
notice  of  the  bond  (see  Hawkins  v.  Day,  Amb.  160)  ;  and  that  he  was 
not  disposed  to  agree  to  what  was  attributed  to  Lord  Kenyon  in  the 
case  cited.^^ 


SECTION  5.— EXECUTORS  DE  SON  TORT 


EMERY  V.  BERRY. 

(Superior  Court  of  Judicature  of  New  Hampshire.  1854.    28  N.  H.  473,  61  Am. 

Dec.  622.) 

Eastman,  J.*  In  examining  the  questions  presented  by  this  case, 
we  shall  pursue  the  order  taken  in  the  argument,  and  consider,  first, 
the  ruling  of  the  court  by  which  a  verdict  was  taken  for  the  defend- 
ant upon  the  issue  to  the  jury. 

It  may  be  stated,  in  general  terms,  that  at  common  law  an  executor 
de  son  tort  is  one,  who,  without  any  authority  from  the  deceased  or 
the  court  of  probate,  does  such  acts  as  belong  to  the  office  of  an  ex- 
ecutor or  administrator ;  and  it  is  said  that  all  acts  of  acquisition,  trans- 
ferring or  possessing  of  the  estate  of  the  deceased,  will  make  an  ex- 
ecutor de  son  tort,  because  these  are  the  only  indicia  by  which  cred- 
itors know  against  whom  to  bring  their  actions.  2  Bac.  Abr.  387, 
and  authorities  there  cited. 

Our  statute  provides  that  "if  any  person  shall  unlawfully  intermed- 
dle with,  embezzle,  alienate,  waste  or  destroy  any  of  the  personal  es- 
tate of  a  deceased  person,  he  shall  stand  chargeable  and  be  liable  to  the 
actions  of  the  creditors  and  others  aggrieved,  as  executor  in  his  own 
wrong,  to  double  the  value  of  the  estate  so  intermeddled  with,  em- 
bezzled, alienated,  wasted  or  destroyed."     Rev.  St.  c.  158,  §  15. 

21  That  case  was  The  GoTemor  and  Company  of  the  Chelsea  Waterworks 
V.  Cowper.  1  Espin.  N.  P.  C.  275  (1795). 

In  Daniel  v.  Baldwin,  148  Ala.  292.  40  South.  421  (1906).  an  administrator, 
without  getting  an  order  of  court  directing  him  to  do  so,  distributed  the 
estate.  An  infant  had  a  claim  of  which  the  administrator  knew  nothing,  and 
by  statute  had  till  12  months  after  attainiug  majority  to  present  It.  The  in- 
fant presented  the  claim  within  that  time,  and  the  adminisrator  and  his  sure- 
ties were  held  liable. 

In  Hanna  v.  Palmer,  6  Colo.  1.50.  45  Am.  Rep.  524  (1882).  where  the  ques- 
tion was  whether  a  widow,  on  renouncing  the  will,  took  under  the  Colorado 
statute  one-half  the  estate  of  her  husband  free  from  his  debts,  the  court 
said:  "If  she  elects  to  take  under  the  will,  it  will  not  be  pretended  that 
her  legacy  is  exempt  from  the  debts  of  the  testator:  and  uix)n  renouncing 
the  will  she  takes  her  legal  moiety,  not  as  dower,  nor  in  lieu  of  dower,  but 
in  lieu  of  the  provisions  of  the  will,  and  impliedlv  subject  to  the  same  liabil- 
ities respecting  the  debts  of  the  deceased."    6  Colo.  161.  45  Am.  Rep.  524. 

So  far  as  an  administrator  has  paid  a  debt  of  the  estate  with  assets  which 
he  is  compelled  to  refund  to  the  widow,  he  will  be  subrogated  to  the  rights 
of  the  creditor.    Flowers  v.  Reece  (Ark.)  123  S.  W.  773  (1909). 

•  The  statement  of  facts  is  omitted. 


Ch.    3)  THE   PAYMENT    OF    DEBTS    OF   THE   ESTATE.  621 

What  precise  acts  shall  be  deemed  an  intermeddling,  so  as  to  charge 
a  person  as  executor  in  his  own  wrong,  has  never,  so  far  as  we  are 
advised,  been  directly  passed  upon  by  the  courts  of  this  state.  The 
question  has  incidentally  arisen  in  two  or  three  cases,  but  no  definite 
decision  has  been  made.  Pickering  et  al.  v.  Coleman,  12  N.  H.  148 ; 
Leach  v.  Pillsbur}'-,  15  N.  H.  137.  In  the  latter  of  these  cases,  it  was 
said  that  "it  seems  that  the  single  act  of  receiving  and  paying  out  a 
sum  of  money  belonging  to  the  estate  of  an  intestate,  will  make  a 
person  an  executor  de  son  tort,  so  far  that  he  may  be  charged  as 
such." 

If  a  stranger  gets  possession  of  the  goods  of  the  deceased  before 
probate  of  the  will,  he  may  be  charged  as  executor  in  his  own  wrong. 
Read's  Case,  .5  Coke,  33,  b;  Salk.  313,  pi.  19;  Dyer,  166,  b;  Roll.  Abr. 
918.  And  Mr.  Justice  Buller,  in  Edwards  v.  Harben,  2  Term,  597, 
says:  "In  short,  every  intermeddling  after  the  death  of  the  party 
makes  the  person  so  intermeddling  an  executor  de  son  tort."  And  the 
same  learned  justice,  in  Padget  v.  Priest,  2  Term,  97,  says:  "It  is 
clear,  from  all  the  cases,  that  the  slightest  circumstances  of  inter- 
meddling will  make  an  executor  de  son  tort." 

The  case  of  Padget  v.  Priest,  and  the  authority  of  Dyer,  166,  b,  are 
cited  and  approved  by  Williams,  in  his  note  2  to  Osborne  v.  Rogers,  1 
Saund.  265. 

A  careful  examination  of  the  authorities  will,  we  think,  show  that, 
as  between  a  creditor  of  the  deceased  and  a  person  who  may  inter- 
meddle with  his  goods,  very  slight  acts  indeed  will  make  him  liable  as 
executor  as  de  son  tort.  Acts  of  necessity  or  humanity,  such  as  lock- 
ing up  his  goods,  burying  the  corpse  of  the  deceased,  or  feeding  his 
cattle,  and  similar  acts  of  charity,  by  which  a  person  does  not  assume 
to  have  any  control  over  the  property  more  than  others,  will  not  con- 
stitute a  person  executor  in  his  own  wrong.  2  Bacon's  Abr.  288;  2 
Black.  Com.  507;  Dyer,  166.^2  gyt  ^here  one  possesses  himself  of 
the  goods  of  the  deceased,  for  the  purpose  of  taking  care  of  them,  the 
object  of  the  possession  must  be  made  to  appear,  before  he  can  be  dis- 
charged from  the  responsibility  arising  from  his  possession.  Hubble 
v.  Fogartie,  3  Rich.  Law  (S.  C.)  413,  45  Am.  Dec.  775. 

The  best  rule  that  occurs  to  us,  that  can  be  laid  down  upon  the  sub- 
ject, is  this:  That  all  acts  which  assume  any  particular  control  over 
the  property,  without  legal  right  shown,  will  make  a  person  executor 
in  his  own  wrong,  as  against  creditors.     Any  act  which  evinces  a  legal 

22  "It  was  formerly  held,  with  great  strictness,  that  no  one  could  inter- 
fere in  the  least  with  the  estate  of  a  deceased  person.  This  was  carried 
to  such  an  extent  that  a  wife  has  been  held  liable  as  executrix  de  son  tort 
for  milking  the  cow  of  her  deceased  husband.  Gerret  v.  Carpenter,  2  Dyer, 
1G6.  note.  But  it  is  now  determined  that  there  are  many  acts  which  do  not 
make  one  liable,  such  as  locking  up  the  goods  of  the  deceased  for  preserva- 
tion, directing  the  funeral  and  paying  the  expenses  thereof,  feeding  his  cat- 
tle, etc. ;  for  these  are  necessary  acts  of  kindness  and  of  charity."  Devens,  J., 
in  Perkins  v.  Ladd,  114  Mass.  420,  422,  19  Am.  Rep.  374  (1874)'. 


622  PROBATE   AND    ADMINISTRATION.  (Part    3 

control,  by  possession,  direction  or  otherwise,  will,  unexplained,  make 
him  liable.  And  this  position  the  authorities  seem  fully  to  sustain. 
2  Bac.  Abr.  387;  5  Coke,  33,  b;  Edwards  v.  Harben,  2  Term,  597; 
Padget  V.  Priest,  2  Term,  97;  Campbell  v.  Tousey,  7  Cow.  (N.  Y.) 
64;  White  v.  Mann,  26  Me.  361;  Wilson  v.  Hudson,  4  Har.  (Del.) 
168;  Hubble  v.  Fogartie,  3  Rich.  Law  (S.  C.)  413,  45  Am.  Dec.  775; 
1  Saund.  265,  note. 

jNIountford  v.  Gibson,  4  East,  441,  and  the  other  cases  cited  by  the 
defendant's  counsel,  will  not,  we  think,  when  carefully  examined,  be 
found  to  conflict  with  these  views. 

The  evidence,  in  this  case,  was  competent  to  show  the  defendant 
executor  in  his  own  wrong,  and  liable  under  our  statute.  It  tended 
to  show  that  the  defendant  had  in  his  possession  $400,  money  which 
he  had  received  from  the  estate  of  his  son,  Joseph  Berry,  who  was 
an  alleged  debtor  of  the  plaintiff,  and  who  died  in  California.  He  re- 
ceived it  through  a  draft  on  Boston,  sent  by  a  Mr.  Matthews,  from 
San  Francisco,  The  object  for  which  the  money  was  sent  is  not 
stated.  It  was  sent  to  the  defendant,  subject  to  no  order  of  the  de- 
ceased, or  of  any  administrator  or  executor  of  his  in  California. 
Matthews  would  appear  to  have  been  acting  as  the  friend  of  the  de- 
ceased, and,  without  any  administration  upon  the  estate,  to  have  taken 
upon  himself  to, send  the  avails  of  the  property  of  the  deceased  to  his 
father,  in  this  state. 

The  case  finds  Berry  to  be  dead.  It  finds,  in  effect,  that  the  $400 
belongs  to  his  estate,  and  that  the  same  is  money,  in  the  hands  of  the 
defendant,  in  this  state.  It  does  not  appear  that  any  administrator,  ex- 
ecutor, creditor  or  heir  in  California  has  any  right  to  the  property,  or 
to  its  control.  Nor  does  it  appear  that  it  was  sent  to  this  state  by  au- 
thority of  any  will  or  the  decree  of  any  probate  court.  Neither  is  any 
thing  disclosed  in  the  case  by  which  it  appears  that  any  one  in  this 
state  or  elsewhere  has  any  right  to  any  legal  control  over  it.  It  is, 
then,  simply  personal  property  of  the  deceased,  in  this  state,  in  the 
hands  of  the  defendant,  subject  to  the  rights  or  interference  of  no 
one,  except  as  the  statute  shall  point  out.  Being  within  our  jurisdic- 
tion, under  such  circumstances,  it  may  properly  be  administered  upon 
in  this  state,  for  the  benefit  of  the  heirs  and  creditors  residing  there. 

There  has  been  no  administration  upon  the  estate  of  the  deceased  in 
this  state,  and  the  defendant  is  the  only  person  shown  to  have  inter- 
meddled with  the  property  here.  He  is  the  only  one  who  has  had  it 
in  his  possession,  and  exercised  control  over  it,  and  we  infer  from  the 
facts  stated,  has  declined  to  surrender  the  property  or  take  out  let- 
ters of  administration  upon  the  estate. 

If  the  defendant  desires  to  avoid  the  penalty  prescribed  by  the  stat- 
ute, it  seems  that  it  may  be  done  by  his  now  taking  out  letters  of  ad- 
ministration.    Shillaber  v.  Wyman,  15  Mass.  322. 

We  are  the  better  satisfied  with  the  conclusion  to  which  we  have 
arrived,  as  to  the  liability  of  this  defendant,  from  comparing  the  sec- 


Ch.    3)  THE  PAYMENT    OF   DEBTS    OF  THE   ESTATE.  023 

tioii  of  the  statute  already  cited  with  the  twelfth  section  of  the  same 
chapter.  The  latter  provides  that  "no  person  shall  intermeddle  with 
the  estate  of  any  person  deceased,  or  act  as  the  executor  or  adminis- 
trator thereof,  or  be  considered  as  having  that  trust,  until  he  shall 
have  given  bond  to  the  judge,  with  sufficient  sureties,  in  such  reason- 
able sum  as  he  shall  approve,  upon  condition,"  etc.  While  this  sec- 
tion provides  that  no  person  shall  intermeddle  with  the  estate  of  any 
person  deceased  without  giving  bond,  the  fifteenth  provides  that  if 
any  person  shall  unlawfully  intermeddle  with  the  personal  estate  of 
any  deceased  person,  he  shall  stand  chargeable  as  executor  in  his  own 
wrong.  The  two  sections  taken  together  would  seem  to  show  that 
when  the  legislature  speak  of  an  unlawful  intermeddling,  they  mean 
all  such  as  takes  place  without  giving  bond  as  administrator  or  ex- 
ecutor. 
Verdict  set  aside  and  new  trial  granted.^' 


ROHN  v.  ROHN. 

(Supreme  Court  of  Illinois,  1903.    204  111.  184,  68  N.  E.  360,  98  Am.  St.  Rep. 

185.) 

Cartwright,  J.  Appellee,  Ida  Rohn,  as  administratrix  of  the  estate 
of  her  deceased  husband,  William  Rohn,  Jr.,  recovered  a  judgment  in 
the  superior  court  of  Cook  county  for  $1,762.50  against  appellant,  Wil- 
liam Rohn,  father  of  said  William  Rohn,  Jr.,  as  executor  de  son  tort 
of  said  estate,  in  an  action  on  the  case  for  negligence  in  failing  to  col- 
lect a  note  of  $1,500  against  George  Wildner,  which  appellant  had  in 
his  hands.  The  Branch  Appellate  Court  for  the  First  District  af- 
firmed the  judgment. 

The  material  facts  appearing  on  the  trial  are  as  follows:  William 
Rohn,  Jr.,  was  a  partner  of  George  Wildner  in  the  manufacture  of  fur- 
niture in  Chicago,  and  having  long  been  ill  with  a  fatal  disease,  he 
attempted  to  arrange  his  business  affairs  and  property  in  view  of  his 
approaching  death.  He  had  no  real  estate  and  no  debts,  and  was 
averse  to  having  his  estate  probated.  To  carry  out  his  arrangement 
he  entered  into  a  contract  with  Wildner  for  the  sale  of  his  interest  in 
the  partnership  to  Wildner  for  $8,500,  on  which  $6,000  was  to  be 
paid  in  cash  or  securities  and  Wildner  was  to  give  his  notes  for  the 
remainder,  one  for  $1,000  and  the  other  for  $1,500.     Wildner  had 

2  3  In  Meyrick  v.  Anderson,  14  Q.  B.  719  (1850),  it  was  held  that  the  execu- 
tor de  son  tort  of  a  rightful  executor  is  liable  in  the  same  manner  as  a 
rightful  executor  for  the^  debt  of  the  original  testator.  In  Georgia,  where  an 
executor  of  an  executor  is  ipso  facto  executor  of  the  original  estate  (Jepson 
V.  Martin.  116  Ga.  772,  43  S.  E.  75  [1902]),  the  same  doctrine  holds  true.  See 
Dawson  v.  Callaway,  18  Ga.  573  (1S55),  where  an  executor  de  son  tort  of  an 
executor  de  son  tort  was  held  as  the  executor  de  son  tort  of  the  original 
testator.  On  executors  de  son  tort,  see  98  Am.  St.  Rep.  190,  note;  85  Am. 
Dec.   423,    note. 


624  PROBATE   AND    ADMINISTRATION.  (Part    3 

$1,600  in  mortgages  and  was  going  to  raise  $400  to  make  up  $2,000. 
He  arranged  to  borrow  $2,000  from  his  mother  and  $2,000  from  Ru- 
dolph Rohn,  brother  of  the  defendant,  for  the  purpose  of  paying  the 
$6,000.  WilHam  Rohn,  Jr.,  executed  a  bill  of  sale  of  his  share  of  the 
partnership,  dated  September  28,  1893,  and  gave  it  to  his  wife,  Ida 
Rohn,  to  be  delivered  upon  compliance  with  the  terms  of  sale.  When 
the  contemplated  sale  should  be  carried  out  his  estate  would  amount 
to  $11,000,  which  was  all  in  personal  property,  and  he  said  that  he 
wanted  to  secure  to  his  wife  $5,000  of  that  sum  and  to  each  of  his 
children  $3,000 ;  that  he  wanted  to  leave  all  his  effects  in  the  care  of 
his  father,  the  defendant,  in  whom  he  had  perfect  confidence.  He  died 
October  10,  1893,  and  on  October  17,  1893,  the  defendant,  in  pursuance 
of  the  arrangement,  took  the  bill  of  sale  and  delivered  it  to  Wildner, 
receiving  from  him  $6,000  and  two  judgment  notes  payable  to  Ida 
Rohn,  under  the  name  of  Mrs.  William  Rohn,  Jr.,  one  for  $1,000,  due 
in  two  years,  and  the  other  for  $1,500,  due  in  three  years.  The  $6,000 
was  raised  by  Wildner  as  above  stated.  The  defendant  gave  to  Ida 
Rohn,  the  widow,  a  list  showing  the  two  notes  and  other  securities, 
aggregating  $11,000,  which  was  the  entire  estate  left  in  his  custody, 
as  requested  by  the  deceased.  She  then  went  with  a  friend  and  the  de- 
fendant to  an  attorney's  office,  where  she  said  that  her  husband  was 
dead  and  it  would  be  better  to  get  things  into  proper  shape  in  accord- 
ance with  his  will;  that  he  wanted  her  to  have  $5,000  and  each  of  the 
children  to  have  $3,000,  and  she  wanted  a  document  drawn  up  to  have 
the  transaction  shown  in  case  anything  should  happen,  and  to  show  that 
defendant  held  the  property.  The  attorney  drew  up,  according  to  her 
directions,  a  declaration  of  trust,  by  which  defendant  acknowledged 
that  he  had  received  from  his  son,  William  Rohn,  Jr.,  $11,000  in  notes, 
partly  secured  and  partly  unsecured,  which  he  held  in  trust  for  Ida 
Rohn  and  her  two  minor  children,  in  the  proportion  of  $5,000  for  the 
former  and  $3,000  for  each  of  the  latter.  He  agreed  to  collect  in- 
terest on  all  the  securities  and  pay  the  same  to  Ida  Rohn  during  the 
minority  of  the  children ;  to  turn  over  her  share  of  $5,000  on  demand, 
and  $3,000  to  each  of  the  children  when  they  became  of  age.  This 
declaration  was  signed  by  the  defendant.  He  attended  to  the  collec- 
tion of  the  principal  and  interest  on  the  securities  as  they  matured,  with- 
out any  compensation,  under  the  agreement.  The  $1,000  note  of  Wild- 
ner was  paid  at  maturity.  Two  annual  payments  of  interest  were  made 
on  the  note  of  $1,500,  and  that  note  matured  October  17,  1896,  and 
was  not  paid  when  due.  Defendant's  brother,  Rudolph  Rohn,  had 
furnished  said  sum  of  $2,000  when  Wildner  purchased  the  interest  in 
the  partnership,  and  the  indebtedness  had  been  increased  to  $3,000,  for 
wliich  Rudolph  Rohn  had  taken  a  chattel  mortgage  on  the  property 
in  the  spring  of  1896,  and  Wildner  also  owed  Rudolph  Rohn  nearly 
two  years'  rent.  In  the  latter  part  of  October,  1896,  the  defendant 
and  Rudolph  Rohn  went  to  Wildner,  and  defendant  requested  pay- 
ment of  the  note  to  the  estate.    They  both  wanted  Wildner  to  pay  them. 


Ch.   3)  THE  PAYMENT    OP    DEBTS    OF  THE  ESTATE.  625 

and  he  asked  for  time,  showing  them  his  stock  and  telling  them  he  was 
looking  for  a  partner  and  was  able  to  pay  everybody.  He  asked  them 
to  wait  until  after  the  election,  in  November,  when  he  would  get  a 
partner  or  make  a  stock  company  and  would  see  that  they  were  pro- 
tected. There  was  no  agreement  for  any  extension,  but  neither  the 
defendant  nor  Rudolph  Rohn  took  any  steps  to  enforce  collection.  In 
November  Wildner's  mother,  who  had  loaned  him  $2,000  to  make  the 
purchase,  entered  judgment  on  her  note.  Rudolph  Rohn,  learning 
that  fact,  paid  the  judgment  to  her  and  foreclosed  his  chattel  mort- 
gage, leaving  Wildner  insolvent,  and  the  $1,500  note  could  not  be  col- 
lected. Plaintiff  was  appointed  administratrix  of  her  husband's  estate 
on  January  26,  1897,  and  on  August  13,  1897,  she  endorsed  upon  the 
declaration  of  trust  a  receipt  for  $9,500  in  cash  and  all  interest  there- 
on to  that  date. 

The  defendant  took  charge  of  the  property  in  entire  good  faith,  with- 
out compensation,  solely  for  the  purpose  of  carrying  out  the  wishes  of 
his  son.  The  only  question  of  fact  in  controversy  in  the  case  was 
whether  defendant  was  guilty  of  negligence  in  not  entering  judgment 
on  the  note  and  making  an  effort  to  enforce  collection  by  that  means. 
The  arguments  of  counsel  on  both  sides  are  directed  almost  exclusively 
to  the  facts,  but  the  judgment  of  the  Appellate  Court  must  be  treated 
by  us  as  finally  settling  the  fact  that  the  defendant  was  guilty  of  neg- 
ligence in  not  exercising  such  diligence  for  the  collection  of  the  note 
as  a  man  of  ordinary  prudence  would  have  exercised  in  his  own  affairs, 
and  also  that  the  loss  and  damage  to  the  estate  was  equal  to  the  dam- 
ages assessed. 

The  assignments  of  error  which  we  may  consider  relate  to  the  giving 
and  refusing  of  instructions.  There  were  only  two  instructions  given 
at  the  request  of  plaintiff,  and  objection  is  made  to  them  on  the  ground 
that  they  erroneously  assumed  that  defendant,  when  the  note  became 
due,  occupied  the  position  of  executor  de  son  tort  of  his  son's  estate, 
while  the  evidence  showed  that  he  acted  simply  as  a  trustee  for  Ida 
Rohn  and  her  two  children,  individually.  What  facts  will  constitute 
an  executor  de  son  tort  of  an  estate  is  a  question  of  law  for  the  court, 
but  the  determination  of  the  facts,  if  they  are  in  controversy,  is  for 
the  jury. 

In  this  case  there  was  no  controversy  whatever  as  to  the  facts  cre- 
ating the  relation  of  defendant  to  the  estate.  The  defendant  received 
all  the  property  of  the  estate,  consisting  of  $11,000  in  notes  and  se- 
curities, of  which  the  widow  was,  under  the  statute,  entitled  to  one- 
third  and  the  children  to  the  balance,  in  equal  shares.  The  arrange- 
ment by  which  the  contract  with  Wildner  had  been  carried  out  was  for 
the  benefit  of  the  estate  and  in  the  interest  of  the  minor  children,  and 
has  not  been  questioned  by  anybody.  The  defendant  having  taken 
the  estate  into  his  possession  and  assumed  its  management,  was  bound 
to  hold  and  account  for  it  in  the  proportions  fixed  by  the  statute.  No 
Cost.  Wills— 40 


626  PROBATE   AND    ADMINISTRATION.  (Part   3 

doubt  the  widow  and  the  defendant  honestly  beHeved  that  by  reason  of 
the  expressed  wish  of  the  deceased  his  estate  could  be  divided  as  they 
attempted  to  divide  it,  and  that  the  property  could  be  placed  in  the 
hands  of  the  defendant  in  a  trust  relation,  as  requested  by  the  deceased, 
but  they  were  both  bound  to  know  the  law,  and  that  the  deceased  could 
not  change  the  distribution  of  his  estate  under  the  statute  without  a 
will,  as  he  attempted  to  do.  It  is  true  that  the  declaration  of  trust  was 
made  at  the  request  of  Ida  Rohn,  and  that  the  services  of  defendant 
were  performed  in  good  faith,  with  no  other  motive  than  to  carry  out 
the  wishes  of  his  deceased  son,  but  the  arrangement  was  void  in  law. 
Ida  Rohn  was  entitled,  as  widow,  to  one-third  of  the  estate  and  the 
minor  children  each  to  one-third,  and  neither  she  nor  defendant  could 
increase  her  interest  to  $5,000.  The  parties  were  wrong  in  their  sup- 
position that  the  arrangement  was  binding  upon  the  minor  heirs,  and 
the  undisputed  facts  placed  the  defendant  in  the  position  of  an  execu- 
tor de  son  tort  of  the  estate.  He  was  bound  to  exercise,  so  far  as  the 
estate  was  concerned,  the  same  diligence  in  the  collection  of  the  note 
as  if  he  had  been  a  regularly  appointed  administrator,  and  there  was 
no  error  in  assuming  that  he  occupied  the  same  position  and  assumed 
the  same  responsibilities  and  liabilities  as  an  administrator. 

The  court  refused  instructions,  asked  by  defendant,  to  the  effect  that 
acts  of  kindness,  beneficence  and  charity  do  not  amount  to  a  usurpa- 
tion of  the  office  of  administrator  and  do  not  create  a  liability  against 
any  person.  The  acts  done  merely  from  kindness  and  charity,  and  for 
no  other  purpose,  which  do  not  create  a  liability,  as  we  understand  it, 
are  limited  to  such  acts  as  directing  a  funeral,  payment  of  funeral  ex- 
penses and  the  preservation  of  the  estate  from  loss  or  waste,  and  the 
like,  while  in  this  case  the  entire  estate  was  taken  by  defendant  for 
management  and  distribution,  including  everything,  in  substance,  that 
an  administrator  would  be  bound  to  do,  but  different  from  the  provi- 
sions of  the  statute.  The  court  did  not  err  in  refusing  the  instruc- 
tions referred  to. 

It  is  further  urged  that  the  court  erred  in  refusing  to  give  instruc- 
tions, asked  by  the  defendant,  advising  the  jury  that  if  the  arrange- 
ment was  concurred  in  by  the  plaintiff,  and  the  defendant  held  the 
note,  with  the  other  property,  for  the  use  and  benefit  of  the  widow  and 
heirs  of  William  Rohn,  Jr.,  with  the  knowledge  and  acquiescence  of 
the  plaintiff,  she  would  be  estopped  from  charging  him  as  executor  de 
son  tort,  and  that  he  would  have  the  right  to  apply  the  note  to  her  dis- 
tributive share  of  the  estate,  which  exceeded  the  amount  of  the  note. 
We  think  the  court  was  right  in  refusing  these  instructions.  In  law 
the  plaintiff  represented  the  estate,  suing  as  administratrix,  and  the 
only  judgment  at  law  would  be  for  or  against  the  defendant  on  the  al- 
leged liability  to  the  estate.  Counsel  have  pointed  out  no  method  by 
which  a  set-off  or  counterclaim  could  be  interposed  in  a  suit  at  law 
or  any  estoppel  be  made  eft'ective  against  the  plaintiff,  representing  the 
estate.    A  court  of  equity  might  look  beyond  the  parties  and  determine 


Ch.  3)        THE  PAYMENT  OF  DEBTS  OF  THE  ESTATE. 


627 


the  case  upon  their  true  relations  and  adjust  the  equities  of  all  the  par- 
ties. The  minor  children  could  not  be  required  to  bear  any  part  of 
the  loss,  and  in  this  suit  the  court  could  not  apportion  it.  A  court  of 
equity  may  assume  jurisdiction  of  the  settlement  of  an  estate,  and  in 
this  case  there  was  nothing  to  adjust  except  the  interest  of  the  dis- 
tributees. If  facts  existed  requiring  that,  as  between  the  defendant 
and  the  widow,  the  loss  ought  to  be  taken  from  her  distributive  share 
of  the  estate,  it  cannot  be  done  in  this  suit,  and  such  relief  must  be 
sought  in  a  court  of  equity.  Whether  she,  as  an  individual  entitled 
to  a  distributive  share  of  the  estate,  was  in  any  manner  responsible 
for  his  failure  to  collect  the  note  is  not  a  question  in  this  case,  and 
there  was  no  error  in  refusing  the  instructions  asked  by  defendant. 

The  judgment  of  the  Appellate  Court  is  affirmed.     Judgment  af- 
firmed.^* 


ROZELL  V.  HARMON. 
(Supreme  Court  of  Missouri,  1891.    103  Mo.  339,  15  S.  W..432,  12  L.  R.  A.  1S7.) 

MacfarIvANE,  J.  This  suit  was  commenced  in  the  circuit  court  of 
Holt  county.  Plaintifif  was  a  creditor  of  one  B.  W.  Ross,  deceased. 
The  suit  was  for  the  purpose  of  recovering  the  amount  of  the  debt 
from  defendant  on  the  ground  that  he  had  wrongfully  appropriated 
and  converted  the  assets  belonging  to  Ross'  estate  to  his  own  use. 
Plaintiff  recovered  judgment  in  the  circuit  court,  and  defendant  ap- 
pealed to  the  Kansas  City  Court  of  Appeals,  where  the  judgment  was 
reversed.  The  case  was  certified  to  this  court  by  the  Court  of  Ap- 
peals on  the  ground  that  the  decision  rendered  therein  was  in  conflict 
with  the  decision  of  this  court  in  the  cases  of  Foster  v.  Nowlin,  4  Mo. 
18,  and  Magner  v.  Ryan,  19  Mo.  196.  The  question  presented  by  the 
record  in  this  case  is  sufficiently  stated  by  Judge  Philips  (29  Mo.  App. 
578)  to  be  "whether  there  can  be,  under  the  probate  system  in  this 
state,  an  executor  de  son  tort,  in  so  far  as  to  authorize  a  single  cred- 
itor of  the  intestate  to  maintain  an  action  of  trover  against  him,  as 
here  sought,  and  thereby  appropriate  the  whole  assets  to  the  payment 
of  his  debt." 

The  system  provided  by  the  laws  of  our  state  for  the  settlement 
of  the  estates  of  deceased  persons  was  evidently  intended  to  be  ex- 
clusive of  all  others.  The  Constitution  provides  for  the  establishment 
of  a  probate  court  in  each  county,  which  shall  have  jurisdiction  in  all 
matters  pertaining  to  probate  business.  The  laws  of  the  state  govern- 
ing the  procedure  in  the  management  and  settlement  of  estates  are 
ample  and  sufficient  to  meet  any  emergency  that  may  possibly  arise 
during  administration.     They   provide    for   the   appointment   of   ex- 

24  Compare  Rouertell  v.  Strode,  126  Mo.  App.  348,  103  S.  W.  510  (1907): 
Tuite  V.  Tuite,  TB^N.  J.  Eq.  740,  66  Atl.  1090  (1907);  Grace  v.  Seibert,  23o 
m.  190,  85  N.  E.  308,  22  L.  R.  A.  (N.  S.)  301  (1908). 


■628 


PROBATE    AND    ADMINISTRATION.  (Part   3 


ecutors  and  administrators,  for  the  preservation  of  the  property,  and 
the  collection  of  the  debts  of  the  estate.  They  also  provide  summary 
and  efficient  proceedings  for  the  discovery  of  assets,  and  for  their  re- 
covery from  the  possession  of  one  who  intermeddles  with  them.  Un- 
der them  any  creditor  can  have  an  administrator  appointed.  Each 
county  is  provided  with  a  public  administrator,  already  qualified, 
whose  duty  requires  him  summarily  to  take  charge  of  all  estates  in 
which  the  property  is  left  in  a  situation  exposed  to  loss  or  damage; 
and  the  court  is  given  power  to  require  him  to  take  charge  of  any 
other  estates  in  case  of  necessity.  Ample  provision  is  made  for  the 
allowance  and  classification  of  debts,  converting  the  assets  into  money, 
and  paying  the  debts  of  all  creditors  pro  rata  according  to  classifica- 
tion. Executors  and  administrators  alone,  under  these  laws,  can  re- 
cover the  assets  or  damages  for  its  conversion.  All  these  provisions 
of  the  law  are  wholly  inconsistent  with  the  idea  of  executors  de  son 
tort  as  at  common  law.  The  administration  laws  of  the  state  do  not 
recognize  the  right  to  wrongfully  administer,  nor  the  right  of  one 
creditor  to  secure  payment  of  his  debt  to  the  exclusion  of  others. 

It  is  insisted  by  plaintiff  that  this  state  has  adopted  the  common  law, 
and  that  under  the  rules  of  the  common  law  his  action  is  authorized, 
and  that  the  rules  of  the  common  law  on  this  subject  have  not  been 
abrogated  by  the  statutes.  It  is  contended  that  under  proper  rules 
of  construction  a  statute  in  derogation  of  the  common  law  must  be 
strictly  construed,  and  that  none  of  its  rules  can  be  changed,  except  by 
express  terms  of  the  statute,  or  by  necessary  implication  therefrom. 
That  rule  of  construction  is  not  of  universal  application.  It  depends 
much  on  the  character  of  the  law  to  be  affected.  In  case  of  statutes 
penal  in  their  character,  or  in  derogation  of  common  right,  a  strict 
construction  is  required;  but  in  regard  to  statutes  merely  remedial  in 
their  character  a  fair,  if  not  liberal,  construction  should  be  given. 
Oster  V,  Rabeneau,  46  Mo,  595 ;  Putnam  v,  Ross,  46  Mo.  337 ;  Cham- 
berlain V,  Transfer  Co.,  44  N.  Y.  305,  4  Am.  Rep,  681;  Buchanan  v. 
Smith,  43  Miss,  90, 

The  statute  of  this  state,  adopting  the  common  law,  itself  limits  or 
modifies  the  rule  of  construction  insisted  upon.  Section  3117,  St, 
1879,  provides  that  the  common  law,  which  is  not  repugnant  to  or  in- 
consistent with  the  Constitution  of  this  state  or  the  statute  laws  in 
force  for  the  time  being,  shall  be  the  rule  of  action  and  decision  in 
this  state.  The  examination  we  have  given  shows  conclusively  that 
the  statute  laws  of  this  state  on  the  subject  of  administration,  taken 
together  as  forming  one  entire  system,  are  wholly  repugnant  to  and 
inconsistent  with  the  common  law  in  respect  to  administrators  de  son 
tort.  We  must  therefore  conclude  that  the  intention  of  the  Legis- 
'ature  was  to  supersede  the  common  law  on  that  subject  altogether. 

The  early  cases  of  this  court  referred  to  by  the  Court  of  Appeals 
do  seem  to  have  recognized  and  acted  under  the  common-law  doc- 
trine invoked  by  plaintiff  in  this  case,  but  since  that  early  day  the 


Ch.    3)  THE   PAYMENT    OF    DEBTS    OP  THE   BSTATB.  629 

administration  laws  of  the  state  have  been  greatly  enlarged,  the  juris- 
diction of  the  probate  court  extended,  and  the  powers  and  duties  of 
administrators  and  executors  increased  until  there  is  no  longer  a  place 
in  the  system  for  the  inequitable,  expensive,  and  tedious  proceedings 
required  by  the  rules  of  the  common  law  in  bringing  intermeddlers 
to  settlement.  The  opinion  of  Philips,  P.  J.,  in  this  case  when  before 
the  court  of  appeals,  and  which  is  reported  in  29  Mo.  App.  570,  with 
the  authorities  cited  by  him,  is  convincing  and  conclusive,  and  is 
adopted  as  the  opinion  of  this  court. 

The  judgment  of  the  Court  of  Appeals  is  affirmed,  and  that  of  the 
circuit  court  of  Holt  county  reversed.  All  the  judges  of  this  division 
concur. 


SLATE  V.  HENKLE. 

(Supreme  Court  of  Oregon,  1904.    45  Or.  430,  78  Pac.  325.) 

J.  E.  Henkle,  as  administrator  of  the  estate  of  Francis  Slate,  de- 
ceased, sued  Porter  Slate,  who  had  been  appointed  administrator  under 
a  void  order,  for  the  conversion  of  property  of  the  estate.  The  de- 
fendant filed  a  complaint  in  the  nature  of  a  cross-bill  in  equity,  al- 
leging that  in  good  faith,  relying  on  his  appointment  as  administrator, 
he  had  sold  certain  property  of  the  estate,  paid  certain  expenses  of 
administration,  etc.  A  demurrer  to  the  cross-bill  was  overruled,  and 
a  decree  entered  requiring  Henkle  as  administrator  to  pay  to  Slate  the 
balance  of  the  expenses  above  the  proceeds  of  the  estate  property  sold 
by  Slate.     Henkle  appealed. 

Moore,  C.  J.^°  *  *  *  ^^y  person  who,  without  authority, 
intermeddled  with  the  estate  of  a  decedent,  by  doing  such  acts  as  prop- 
erly belonged  to  the  office  of  an  executor  or  administrator,  was  orig- 
inally denominated  an  executor  de  son  tort,  who  would  be  sued  by 
the  legal  representative  of  the  deceased,  by  a  creditor  of  the  estate, 
by  a  legatee,  and,  if  all  the  debts  were  paid,  by  a  distributee,  and  was 
liable  to  the  extent  of  the  assets  which  he  had  received.  11  Am.  & 
Eng.  Enc.  Law  (2d  Ed.)  1342,  1351.  Our  statute  has  abolished  the 
common-law  rule  which  made  one  who  officiously  interfered  with  the 
property  of  a  deceased  person  an  executor  de  son  tort  by  depriving 
creditors  of  the  estate  and  others  of  the  remedy  which  they  anciently 
possessed  of  charging  the  intermeddler  as  an  executor  of  his  own 
wrong ;  but  the  latter  is  now  made  responsible  only  to  the  legal  repre- 
sentative of  the  decedent  for  the  value  of  all  property  taken  or  re- 
moved and  for  all  injury  caused  by  his  interference  therewith.  B.  & 
C.  Comp.  §  385 ;  Rutherford  v.  Thompson,  14  Or.  236,  12  Pac.  382. 

In  the  case  at  bar,  the  intestate,  at  the  time  of  her  death,  not  being 

2  6  The  statement  of  facts  is  abbreviated,  and  part  only  of  the  opinion  is 
given 


630 


PROBATE    AND    ADMINISTRATION.  (Part   3 


an  inhabitant  of  Linn  county,  the  county  court  thereof  had  no  juris- 
diction of  the  subject-matter  of  her  estate,  and  its  letters  of  adminis- 
tration issued  to  Slate  were  therefore  void.  Slate's  Estate,  40  Or. 
349,  68  Pac.  399.  The  appointment  being  a  nullity,  Slate's  posses- 
sion and  sale  of  the  personal  property  belonging  to  the  estate,  if  it 
were  not  for  the  immunity  afforded  by  our  statute,  amending  the 
common-law  rule,  would  have  rendered  him  an  executor  of  his  own 
wrong.  1  Abbott,  Probate  Law,  §  407 ;  Bradley  v.  Commonwealth,  31 
Pa.  522.  He  undoubtedly  had  reason  to  believe  and  did  believe  that 
his  appointment  was  valid,  and,  this  being  so,  every  advantage  that  an 
executor  de  son  tort  can  invoke  should  be  appHed  in  his  favor.  The 
rule  is  universal  that  such  an  executor  is  subject  to  all  the  liabilities 
of  an  ordinary  executor  without  being  entitled  to  any  of  his  privileges. 
11  Am.  &  Eng.  Enc.  Law  (2d  Ed.)  1351 ;  1  Woerner,  Am.  Law  of 
Administration  (2d  Ed.)  §  193 ;  1  Williams,  Ex'rs,  *216. 

The  statute  43  Eliz.  c.  8,  so  far  as  material  herein,  enacted :  "That 
all  and  every  person  and  persons  that  hereafter  shall  obtain,  receive, 
and  have  any  goods  or  debts  of  any  person  dying  intestate,  or  a  re- 
lease or  other  discharge,  or  any  debt  or  duty  that  belonged  to  the  in- 
testate, *  *  *  shall  be  charged  and  chargeable  as  executor  of 
his  own  wrong ;  and  so  far  only  as  all  such  goods  and  debts  coming  to 
his  hands,  or  whereof  he  is  released  or  discharged  by  such  adminis- 
trator, will  satisfy,  deducting  nevertheless  to  and  for  himself  allow- 
ance *  *  *  of  all  other  payments  made  by  him,  which  lawful  ex- 
ecutors or  administrators  may  and  ought  to  have  and  pay  by  the  laws 
and  statutes  of  this  realm."  4  Bacon,  Ab.  (Bouv.  Notes)  28.  The 
enactment  of  this  statute  probably  gave  rise  to  the  rule,  adopted  by 
courts,  that  just  debts  of  a  decedent  which  have  been  paid  by  an  ex- 
ecutor de  son  tort  according  to  their  legal  priority  may  be  set  off 
against  the  amount  of  damages  for  which  his  intermeddling  has  ren- 
dered him  liable.  11  Am.  &  Eng.  Enc.  Law  (2d  Ed.)  1353;  Cook  v. 
Sanders,  15  Rich.  Law  (S.  C.)  63,  94  Am.  Dec.  139;  Bennett  v.  Ives, 
30  Conn.  329.     *     *     * 

Williams,  in  his  work  on  Executors  (American  Notes  by  Randolph 
&  Talcott,  vol.  1,  p.  310),  in  discussing  this  subject,  says:  "With  re- 
spect to  the  liability  of  an  executor  de  son  tort  at  the  suit  of  the  lawful 
representative  of  the  deceased,  there  are  several  authorities  to  show 
that,  if  the  rightful  executor  or  administrator  bring  an  action  of  trover 
or  trespass,  the  executor  de  son  tort  may  give  in  evidence,  under  the 
general  issue,  and  in  litigation  of  damages,  payments  made  by  him  in 
the  rightful  course  of  administration,  upon  this  ground:  that  the  pay- 
ments which  are  thus,  as  it  is  termed,  recouped  in  damages,  were  such 
as  the  lawful  executor  or  administrator  would  have  been  bound  to 
make ;  and  therefore  it  cannot  be  considered  as  any  detriment  to  him 
that  they  were  made  by  an  executor  de  son  tort."  To  the  same  effect, 
see  11  Am.  &  Eng.  Enc.  Law  (2d  Ed.)  1352. 

Mr.  Chief  Justice  Lord,  in  Rutherford  v.  Thompson,  14  Or.  236, 


Ch.    3)  THE  PAYMENT    OF    DEBTS    OF  THE   ESTATE.  631 

12  Pac.  382,  in  discussing  the  effect  of  our  statute  amending  the 
conimon-law  rule,  and  of  the  right  of  an  executor  de  son  tort  to  be 
credited  with  payments  which  he  may  have  made  that  are  tantamount 
to  a  due  administration  of  a  decedent's  estate,  says :  "The  person  who 
intermeddles  with  the  goods  of  the  deceased  is  now  only  responsible 
to  answer  in  an  action  to  the  rightful  executor  or  administrator.  And 
whether  we  consider  the  intermeddler  as  an  executor  de  son  tort  or  as 
a  wrongdoer,  the  liability  to  respond  to  the  rightful  executor  or  ad- 
ministrator is  the  same,  and  unaffected,  and  the  law  unchanged.  The 
fiction  of  office  may  be  gone,  but  the  unauthorized  act  of  inter- 
meddling remains,  to  be  dealt  with  judicially,  according  to  the  prin- 
ciples of  right  and  justice,  as  applied  by  the  law  in  such  cases.  Now. 
from  the  fact  that  the  intermeddler  with  the  goods  of  a  deceased  is 
only  liable  to  respond  to  the  rightful  executor  or  administrator  for 
the  value  of  the  goods,  etc.,  it  by  no  means  follows,  if  what  he  did 
was  of  benefit,  and  not  injury,  to  the  estate — as  the  payment  of  fu- 
neral expenses,  or  debts  of  the  deceased,  or  charges  such  as  the  right- 
ful representative  might  have  been  compelled  to  pay — he  would  not 
be  allowed  to  show  the  same  in  mitigation  of  damages  in  an  action 
of  trover,  instituted  by  such  executor  or  administrator.  In  thus  com- 
pelling him  to  account  with  only  the  rightful  representative  the  stat- 
ute does  not  purport  or  undertake  to  deprive  him  of  any  proper  or 
legitimate  defense.  The  title  of  executor  de  son  tort  may  be  repu- 
diated, but  the  justice  of  the  law  will  remain,  to  distinguish  between 
acts  which  are  beneficial  and  those  which  are  injurious  to  an  estate." 
We  think  Slate  had  an  adequate  remedy,  in  the  law  action  instituted 
by  Henkle  against  him,  to  recoup  against  the  claim  for  damages 
caused  by  his  intermeddling  all  payments  made  by  him  that  neces- 
sarily conduced  to  the  benefit  of  his  mother's  estate.  There  are  some 
items,  however,  in  his  claim,  as  disclosed  by  the  cross-bill,  that  could 
never  have  been  of  any  advantage  thereto.  Thus  the  sums  paid  to 
the  surety  company  for  responsibility  assumed  on  Slate's  undertaking, 
and  also  the  appraisers'  and  justice's  fees  [for  administering  oaths  to 
appraisers].  The  sum  paid  on  account  of  attorney's  fees  was  no  ad- 
vantage, unless  the  service  rendered  was  in  preserving  the  property 
of  the  estate;  certainly  not  in  the  ordinary  settlement  thereof,  or  in 
defending  in  the  former  suit.  The  sum  of  $100  claimed  by  Slate  [for 
services  performed  in  caring  for  the  decedent's  property  from  May  6, 
1900,  to  March  3,  1902]  should  not  be  allowed,  unless  his  service, 
like  that  of  his  attorneys,  was  performed  in  preserving  or  caring  for 
the  property,  resulting  in  a  benefit  thereto.  He  is  not  entitled  to  any 
sum  whatever  as  administrator's  fees,  and  if  the  county  court  ap- 
pointing him  had  allowed  and  he  had  secured  the  sum  prescribed  by 
law  as  compensation  in  such  cases,  as  he  was  only  a  de  facto  repre- 
sentative of  the  decedent's  estate  the  de  jure  administrator  could  have 
recovered  such  fees  from  him,  for  the  rule  is  almost  universal  that 


g32  PROBATE    AND    ADMINISTRATION.  (Part    3 

an  officer  de  facto  is  liable  to  an  officer  de  jure  for  emoluments  of 
office  after  ouster.    Throop,  Pub.  Officers,  §§  256,  523,  663.     *     *     * 

In  the  case  at  bar  Slate  was  interested  in  the  estate  of  his  mother 
and  therefore  not  a  volunteer,  and,  as  he  could  have  interposed  the 
defense  indicated  in  the  law  action,  an  error  was  committed  in  over- 
ruling the  demurrer. 

The  decree  will  therefore  be  reversed,  the  demurrer  sustained,  and 
the  cross-bill  dismissed.^' 


SECTION   6.— REFUNDING   B^    CREDITORS 


WOLF  v.  BEAIRD  et  al. 

(Supreme  Court  of  Illinois,  1888.     123  III.  585,  15  N.  E.  161,  5  Am.  St.  Rep. 

565.) 

Magruder,  J.  Edward  J.  French  died  testate  on  March  3,  1880. 
This  will  was  admitted  to  probate  in  the  county  court  of  Richland 
county,  and  letters  testamentary  were  issued  to  the  appellant,  John 
Wolf,  as  the  executor  thereof,  on  March  8,  1880.  The  county  court 
allowed  two  claims  against  French's  estate,  one  on  May  18,  1880,  and 
another  on  August  17,  1880,  in  favor  of  John  B.  Gharst.  During  the 
first  year  of  the  administration  Wolf  had  money  enough  on  hand  to 
pay  in  full  all  the  claims  filed  against  the  estate  before  the  end  of  that 
year.  He  paid  Gharst  30  per  cent,  of  his  two  claims  on  August  17, 
1880,  and  he  paid  him  the  balance  of  such  two  claims  on  October  15, 
1880.  On  the  latter  date  Gharst's  total  claim  against  the  estate  was 
paid  in  full.  At  the  time  Wolf  paid  Gharst's  claim  in  full,  he  and 
Gharst  both  believed  that  French's  estate  was  solvent,  and  would  not 
only  be  able  to  pay  all  the  debts,  but  would  have  a  surplus  for  the 
heirs.  Both  parties  acted  in  good  faith,  the  executor  in  paying,  and 
the  creditor  in  receiving,  the  full  amount  of  the  claim. 

If  the  claims  hereafter  mentioned,  which  were  not  known  to  exist 
at  that  time,  had  not  been  filed,  the  surplus  would  have  amounted  to 
$1,800.  Two  large  claims  were  allowed  against  the  estate,  one  on 
June  20,  1881,  in  favor  of  Robert  Allyn,  trustee,  and  another  on  June 
21,  1881,  in  favor  of  Lucy  French,  which  made  the  estate  insolvent 
as  to  the  payment  of  claims  of  the  seventh  class.  By  the  allowance 
of  these  latter  claims,  the  assets  were  so  reduced  that  the  estate  was 

2«  In  Bradley  v.  Com.,  31  Pa.  522  (1858),  It  was  held  that  letters  of  ad- 
ministration issued  on  a  bond  executed  by  only  one  surety,  -when  the  law 
required  two  or  more,  were  void,  and  that  the  woman  acting  under  them 
"became  administratrix  of  her  own  wrong."  But  see  Steele  v.  Tutwiler,  68 
Ma.  107  (1880). 


Ch.    3)  THE   PAYMENT    OF    DEBTS    OF  THE   ESTATE.  633 

only  able  to  pay  61.72  per  cent,  of  the  claims  oi  the  seventh  class   tc 
which  the  Gharst  claim  and  the  Allyn  and  Lucy  French  claims  all  be- 
lono-ed      It  thus  turned  out  that  Gharst  had  been  overpaid  by  the 
amSunt  of  the  difference  between  100  per  cent,  and  61.72  per  cent. 
Gharst  died  testate  on  September  4,  1881,  and  the  appellees  are  the  ex- 
ecutors under  his  will.  j    ci    i  „ 
Wolf   as  executor  of  the  estate  of  E.  L  French,  deceased,  filed  a 
claim  against  Gharst's  estate,  in  the  county  court  of  Richland  county, 
for  the  excess  of  the  amount  so  paid  to  Gharst  over  the  pro  rata  share 
to  which  he  was  properly  entitled.     On  June  20,  1882,  this  claim  of 
Wolf  against  Gharst's  estate  was  allowed  by  the  county  court  and  an 
appeal  was  taken  to  the  circuit  court,  where  the  case  was  tried  before 
the  circuit  judge,  without  a  jury,  by  agreement.     The  circuit  court 
ordered  that  the  claim  be  allowed  as  a  seventh  class  claim,  to  be  paid 
in  due  course  of  administration,  and  directed  that  its  order  be  certi- 
fied down  to  the  county  court  for  payment.     The  case  was  then  taken 
by  writ  of  error  to  the  Appellate  Court,  which,  at  its  February  term, 
1886    reversed  the  judgment  of  the  circuit  court,  and  remanded  the 
cause     A  second  trial  was  had  before  the  circuit  judge  without  a 
jury,  at  the  November  term,  1886,  which  resulted  m  a  judgment  m 
favor  of  appellant  against  appellees. 

This  judgment  has  been  brought  before  the  Appellate  Court  a  sec- 
ond time,  and  has  been  again  reversed.  It  now  comes  before  us  by 
appeal  from  the  Appellate  Court,  and  upon  certificate  that  the  case 
involves  a  question  of  law  of  such  importance,  on  account  of  collateral 
interests,  that  it  should  be  passed  upon  by  the  Supreme  Court. 

Both  Wolf  and  Gharst  knew,  or  were  bound  to  know,  that,  under 
the  law,  Gharst  could  not  lawfully  receive  his  claim  in  full  out  of  the 
assets  of  the  French  estate,  unless  those  assets  were  sufficient  to  pay 
all  claims  of  the  same  class  with  his  own.  There  was  a  mutual  mis- 
take of  facts  in  respect  to  which  both  parties  were  equally  bound  to 
inquire.  They  both  believed  that  the  assets  were  sufficient  to  pay  the 
claims  in  full,  and  acted  upon  such  relief ;  but  both  were  mistaken  in 
regard  to  the  fact.  "Money  paid  by  one  party  to  another,  through  a 
mutual  mistake  of  facts,  in  respect  to  which  both  were  equally  bound 
to  inquire,  may  be  recovered  back."  Bank  v.  Bank,  1  Hill  (N.  Y.) 
287 ;  Wheadon  v.  Olds,  20  Wend.  (N.  Y.)  174.  "The  count,  for  mon- 
ey had  and  received,  is  also  maintainable  for  the  recovery  of  money 
paid  under  a  mistake,  on  the  part  of  the  payer,  of  a  material  fact." 
2  Chit.  Cont.  (11th  Ed.)  928;  1  Chit.  PI.  355;  Bank  v.  Mitchell,  88 
111.  52 ;  Stempel  v.  Thomas,  89  111.  147. 

Wolf  was  mistaken  in  a  material  fact.  If  he  had  not  been  mistaken 
in  the  fact,  which  he  supposed  to  exist,  that  the  assets  were  suffi- 
cient to  pay  the  claims  in  full ;  in  other  words,  if  the  assets  had  been 
sufficient  to  pay  the  claims  in  full,  he  would  have  been  liable  to  pay 
Gharst  the  38.28  per  cent,  so  paid  to  him  by  mistake.     The  filing  of 


634  PROBATE    AND    ADMINISTRATION.  (Part   3 

the  claim  by  Wolf  against  Gharst's  estate  was  in  the  nature  of  an 
equitable  action  for  money  had  and  received,  or  money  paid  under 
a  mistake  of  fact.  If  Wolf  could  have  brought  an  a'ction  of  assumpsit 
against  Gharst  in  the  latter's  lifetime,  for  the  excess  of  the  payment 
over  the  proper  pro  rata  share,  then  a  claim  for  such  excess  was  a 
proper  claim  to  be  filed  against  Gharst's  estate,  so  far  as  the  nature 
of  the  demand  is  concerned. 

It  was  held  in  Rogers  v.  Weaver,  5  Ohio,  536,  that  an  administrator, 
who,  under  the  supposition  that  the  estate  was  solvent,  had  paid  a 
creditor  beyond  his  distributive  share,  might,  upon  final  settlement,  re- 
cover back  the  difference  in  an  action  for  money  had  and  received. 
See,  also.  Walker  v.  Hill,  17  Mass.  380. 

When  this  case  was  tried  a  second  time  before  the  circuit  judge,  at 
the  November  term,  1886,  it  was  proven,  that  appellant  had  filed  his 
final  report,  as  executor,  on  July  15,  1886,  and  had  been  discharged  by 
the  county  court.  The  order  of  the  county  court,  entered  at  date,  found 
that  the  assets  were  only  adequate  to  pay  61.72  per  cent,  of  the  claims 
of  the  seventh  class ;  that  the  estate  was  insolvent  as  to  those  claims ; 
that  Wolf  had  paid  61.72  per  cent,  upon  all  the  claims  of  the  seventh 
class;  and  the  final  report  was  by  such  order  confirmed  and  the  es- 
tate declared  to  be  settled.  Hence  it  appeared  affirmatively  that  ap- 
pellant had  advanced  out  of  his  own  pocket  the  38.28  per  cent,  overpaid 
to  Gharst.  Otherwise  he  could  not  have  settled  all  the  seventh  class 
claims  at  61.72  per  cent,  of  their  amounts. 

It  is  claimed  that  appellant  could  only  sue  in  his  individual  capac- 
ity, and  not  as  executor,  for  the  overpayment  to  Gharst,  and  that  he 
could  not  bring  suit  until  he  had  advanced  money  enough  out  of  his 
own  means  to  make  up  to  the  French  estate  the  amount  of  such  over- 
pa}TOent,  the  amount  which  was  paid  to  Gharst  by  mistake,  having 
been  the  money  of  the  estate  and  not  his  own  money.  Upon  these 
grounds  it  is  urged  that  when  the  claim  was  first  filed  in  the  county 
court,  in  1882,  the  cause  of  action  was  not  ripe  for  suit.  When  the 
claim  was  presented  to  the  county  court,  in  June,  1882,  Gharst's  estate 
owed  the  amount  which  had  been  overpaid  to  him  in  his  lifetime. 

Whether  Gharst's  estate  then  owed  that  amount  to  appellant,  as 
executor,  or  to  appellant,  as  an  individual,  or  to  the  other  creditors 
of  the  French  estate,  matters  not,  so  far  as  the  existence  of  the  indebt- 
edness was  concerned.  The  debt  existed  to  somebody,  and  the  same 
debt  existed  all  the  way  through  up  to  the  last  trial  in  November,  1886. 
It  could  make  no  practical  difference  to  the  Gharst  estate  who  owned 
the  claim  against  it.  As  Gharst  had  received  more  money  than  he 
ought  to  have  had,  his  estate  was  liable  to  refund  the  amount.  This 
liability  remained  the  same  from  the  beginning  to  the  end,  whatever 
variations  there  may  have  been  in  the  ownership  of  the  claim,  or  in 
the  form  of  the  evidence,  by  which  it  could  be  substantiated.  In  ad- 
judicating upon  the  claim,  the  county  court  was  possessed  of  an  equi- 


Cll.   3)  THE   PAYMENT    OF    DEBTS    OF  THE   ESTATE.  635 

table  jurisdiction.  Dixon  v.  Buell,  21  111.  203;  Hurd  v.  Slaten,  43 
111.  348.  Equity  disregards  mere  matters  of  form,  and  looks  at  the 
substance. 

It  is  said  that  when  the  claim  was  filed  against  Gharst's  estate,  the 
county  court  had  not  declared  the  French  estate  insolvent,  and  had  not, 
by  an  order  fixed  the  'amount  of  the  dividend  or  pro  rata  percentage 
belonging  to  the  creditors.  Nevertheless  the  amount  of  such  percent- 
age was  capable  of  ascertainment,  in  June,  1882.  The  proof  showed 
at  that  time  the  assets  of  the  French  estate,  the  amount  of  Gharst's 
claim,  and  the  amounts  of  all  the  other  claims,  including  those  filed  in 
June,  1881.  From  these  data  it  was  easy  to  figure  the  amount  of  the 
percentage  the  creditors  were  entitled  to  and  the  amount  of  the  over- 
payment to  Gharst.  The  subsequent  order  made  on  July  15,  1886, 
was  more  certain  and  definite  evidence,  but  after  all  it  was  only  evi- 
dence of  what  already  existed.  When  the  appeal  was  taken  to  the  cir- 
cuit court,  the  trial  in  the  latter  court,  in  November,  1886,  was  de  novo, 
and  it  was  proper  to  introduce  then  as  evidence  the  order  of  July  15, 
1886,  though  the  same  evidence  had  not  yet  come  into  existence  in 
1882.    Thorp  v.  Goewey,  85  111.  611. 

It  is  said  that  this  claim  was  improperly  filed  by  Wolf,  as  executor 
of  the  estate  of  E.  J.  French,  deceased.  The  money  was  paid  to  Gharst 
after  the  death  of  French.  The  law  created  an  implied  contract  on 
the  part  of  Gharst  with  Wolf  to  pay  back  the  excess.  An  executor  or 
administrator  may  sue,  either  in  his  representative  or  in  his  personal 
character,  on  contracts  made  with  him  after  the  death  of  the  deceased. 
Dicey,  Parties,  233.  Where  the  indebtedness  thus  grows  out  of  a  con- 
tract with  the  executor,  he  may  sue  in  his  own  name ;  or  if  the  word 
"executor"  or  "administrator"  is  used  after  his  name,  it  will  be  re- 
garded as  merely  descriptive  of  the  person,  and  as  being  immaterial. 
Eaycock  v.  Oleson,  60  111.  30.  The  legal  title  to  the  money  paid  to 
Gharst  was  in  Wolf.  Neubrecht  v.  Santmeyer,  50  111.  74;  Walker 
V.  Craig,  18  111.  116 ;   Makepeace  v.  Moore,  5  Gilman,  474. 

The  right  of  action  was  in  Wolf.  The  statute  does  not  require  any 
written  pleadings  in  the  case  if  a  claim  be  presented  to  the  county 
court.  Thorp  v.  Goewey,  supra.  If  the  right  of  action  was  in  Wolf, 
as  trustee  for  the  French  estate,  upon  the  trial,  in  1882,  but  was  in 
Wolf,  as  an  individual,  in  1886,  by  reason  of  his  advance  to  the  French 
estate  of  the  money  overpaid  to  Gharst,  this  change  could  make  no  dif- 
ference to  the  Gharst  estate.  Wolf  was  still  the  legal  claimant,  wheth- 
er claiming  for  himself  or  in  trust  for  another.  He  could  not  charge 
the  French  estate  with  any  of  the  costs  or  expenses  of  prosecuting 
the  claim  against  the  Gharst  estate,  even  though  he  sued  as  executor, 
because  he  was  suing  to  recover  back  money  improperly  paid  out  by 
himself. 

Although  the  judgment  entered  by  the  court  in  November,  1886, 
was  in  favor  of  Wolf,  as  executor,  he  was  entitled  to  the  money  in  his 


636  PROBATE    AND    ADMINISTRATION.  (Part   S 

individual  capacity.  The  mere  addition  of  the  word  "executor"  to  his 
name  would  make  no  difference;  nor  could  the  amount  of  the  judg- 
ment be  recovered  from  him  by  the  French  estate,  as  assets  of  that 
estate,  because  he  could  plead  as  an  off-set  the  amount  advanced  by 
him  to  the  French  estate  to  make  up  the  overpayment  to  Gharst. 

We  think  the  judgment  rendered  by  the  circuit  court  was  right. 
The  judgment  of  the  Appellate  Court  is  therefore  reversed.^^ 

2T  See  Morris  v.  Porter,  87  Me.  510.  33  Atl.  15  (1895);  Tarplee  v.  Cnpp,  25 
Inrl.  App.  56,  56  N.  E.  270  (1900).  See.  also,  Woodruff  v.  H.  B.  Claflin  Co., 
133  App.  Div.  874,  118  N.  Y.  Supp.  48  (1909),  where  the  payment  was  the  re- 
sult of  a  compromise  by  the  administratrix  with  the  creditor,  and  the  coart 
said:  "Whatever  mistake  or  negligence  in  the  transaction  may  be  imputed 
to  the  administratrix,  the  estate  ought  not  to  suffer.  The  transaction  con- 
cerned, not  these  two  alone,  but  all  other  persons  interested  in  the  estate 
beneficially,  and  the  surety  also.  A  private  compact  between  the  two  could 
not  legally  affect  the  rest  when  made  to  their  detriment.  This  overpaid 
creditor  had  no  equitable  right  to  retain  the  excess  received  above  its  pro 
rata  share  of  assets."  Compare  Golding  v.  McCall,  5  Ga.  App.  545,  63  S.  E. 
706  (1909).  But  see  Carson  v.  McFarland.  2  Rawle  (Pa.)  118.  19  Am.  Dee.  627 
(1828);  Findlay  v.  Trigg's  Adm'r,  83  Va.  539,  3  S.  E.  142  (1887) ;  Staples'  Ex'r 
V.  Staples,  85  Va.  76,  7  S.  E.  199  (1888),  where  the  right  of  the  administrator 
to  compel  the  creditors  to  refund  is  denied. 

In  Flint  v.  Valpey,  130  Mass.  385  (1881),  the  right  to  recover  from  the 
creditor  was  held  not  to  accrue  until  the  decree  of  distribution  was  made, 
because  until  such  decree  it  is  not  proven  that  the  estate  is  insolvent,  nor,  if 
it  is  insolvent,  how  much  the  personal  representative  should  recover. 


Ch.    4)  PAYMENT  OF   LEGACIES  AND    SHARES.  637 


CHAPTER  IV 

THE  PAYMENT  OF  LEGACIES  AND  DISTRIBUTIVE 

SHARES 


SECTION  1.— THE  TIME  OF  PAYMENT  OF  LEGACIES  AND 
INTEREST,  DIVIDENDS,  AND  UPKEEP  CHARGES 

ON  LEGACIES 


PEARSON  V.  PEARSON. 

(High  Court  of  Chancery  in  Ireland,  1802.     1  Sch.  &  L.  10.) 

The  bill  was  filed  by  the  executor  of  Matthew  Pearson,  to  have 
the  trusts  of  his  will  carried  into  execution  under  the  direction  of  the 
court. 

By  this  will  several  pecuniary  legacies  were  bequeathed  with  direc- 
tions that  they  should  be  paid  within  a  week  after  the  death  of  the 
testator,  or  in  failure  thereof  that  they  should  bear  interest  from  that 

time.     There  followed  other  legacies  to  Mrs.  Vickers,  and  to  

Vickers  her  son,  which  were  given  generally  without  assigning  any 
time  for  payment,  and  the  residuum  was  bequeathed,  one-half  to  be 
divided  by  the  executor  between  the  sons  and  daughters,  grandsons 
and  granddaughters  of  testator's  cousins  Roger  and  Henry  Pearson, 
share  and  share  alike,  and  the  other  moiety  to  his  said  executor  for  his 
own  use,  subject  to  make  good  the  other  demands  created  by  the  will. 

The  testator  died  possessed  of  a  considerable  personal  estate,  con- 
sisting chiefly  of  bank  stock  and  government  debentures.  One  ques- 
tion which  arose  upon  the  will  was,  whether  the  legacies  to  Mrs.  Vick- 
ers and  her  son  bore  interest,  the  personal  estate  being  a  productive 
fund. 

Mr.  Burne  and  Mr.  F.  W.  Greene,  for  these  legatees,  cited  Maxwell 
V.  Wettenhall,  2  P.  Wms.  27  (4th  point):  "If  a  legacy  be  given  out 
of  a  personal  estate,  consisting  of  mortgages  carrying  interest,  or  of 
stocks  yielding  profits  half  yearly,  it  seems  in  this  case  the  legacy  shall 
carry  interest  from  the  death  of  the  testator." 

Lord  Chancellor  [Redesdai^e].^    As  to  the  reason  given  for  the  rule, 
mentioned  in  Maxwell  v.  Wettenhall,  that  the  legacy  is  payable  out 
of  a  fund  which  is  yielding  profits,  I  take  it  that  makes  no  difiference. 

t  Part  of  the  case  relating  to  costs  i.«;  omitted. 


638  PROBATE    AND    ADMINISTRATION.  (Part    3 

In  case  of  a  legacy  charged  upon  lands,  the  land  yields  profit:  but 
that  is  not  the  reason  that  in  such  case  the  legacy  Isears  interest  im- 
mediately. The  rule  with  respect  to  legacies  out  of  personal  estate  is 
taken  from  the  practice  in  the  ecclesiastical  courts  where  a  year  is 
given  to  the  executor  to  collect  the  effects,  and  he  cannot  be  called 
upon  to  pay  before  that  time,  because  he  cannot  know  until  then  what 
fund  there  is  to  pay;  in  conformity  to  this,  courts  of  equity  have  pro- 
ceeded, in  the  case  of  legacies  out  of  personal  estates.  But  in  the  case 
of  legacies  charged  upon  lands  only,  where  no  day  of  payment  is  fixed, 
interest  must  be  chargeable  from  the  death  of  the  testator  or  not  at  all. 
Nothing  can  be  more  settled  than  that  a  man's  saying,  "I  direct  all 
my  stock  to  be  applied  to  the  payment  of  legacies,"  will  not  make  tliose 
■legacies  bear  interest  one  moment  sooner  than  they  otherwise  would. 
Whether  the  fund  bears  interest  or  not  is  totally  immaterial  in  the  case 
of  pecuniary  legacies.  I  remember  a  case  of  Greening  v.  Barker,  where 
the  fund  did  not  come  to  be  disposable  for  the  payment  of  legacies  till 
near  forty  years  after  the  death  of  the  testator,  and  yet  the  legacies 
were  held  to  bear  interest  from  the  year  after  testator's  death,  and  the 
court  there  was  of  opinion,  that  it  was  a  general  settled  and  fixed  rule, 
that  pecuniary  legacies  bear  interest  from  the  expiration  of  twelve 
months,  if  there  should  at  any  time  be  a  fund  for  the  payment  of  them, 
and  that  in  case  the  fund  was  productive  within  the  twelve  months  all 
the  intermediate  profits  belonged  to  the  residuary  legatee.  The  execu- 
tor may'  pay  the  legacy  within  the  twelve  months,  but  is  not  com- 
pelled to  do  so:  he  is  not  to  pay  interest  for  any  time  within  the 
twelve  months,  although  during  that  time  he  may  have  received  in- 
terest. But  if  he  has  assets  he  is  to  pay  interest  from  the  end  of  the 
twelve  months,  whether  the  assets  have  been  productive  or  not.^ 


WELCH  et  al.  v.  ADAMS  et  al. 

(Supreme  Judicial  Court  of  Massachusetts,  Suffolk,  1890.    152  Mass.  74,  25  N. 

E.  34,  9  L.  R.  A.  244.) 

Devens,  J.f  *  *  *  The  first  question  presented  by  the  execu- 
tors, according  to  the  report,  is  whether  the  legacy  by  Mr.  Isaac  Adams 
to  his  wife  carries  interest  from  the  date  of  the  testator's  death,  or  from 
the  end  of  one  year  thereafter.  This  bequest  was  of  "the  sum  of  six- 
ty-four thousand  dollars  in  money,  to  be  paid  her  as  soon  as  convenient 
after  my  decease,"  and  was  acccompanied  by  a  devise  to  her  of  five 
pieces  of  productive  real  estate  in  Massachusetts,  of  which  she  was 

«  On  a  legatee  as  a  creditor  entitled  to  interest,  see  In  re  Rutherford,  19G  N. 
Y.  .311,  80  N.  E.  S20  (1900). 

As  to  interest  on  legacies,  see,  also,  3  Prob.  Rep.  Ann.  563,  note ;  9  1j.  R.  A. 
248-2.->0.  note;  6  Am.  &  Eng.  Ann.  Cas.  .525,  note.  In  Harrison  v.  Watkins,  127 
Ga.  314,  56  S.  E.  437  (1907),  interest  did  not  begin  to  run  for  17  years. 

t  Part  only  of  the  opinion  is  given. 


Ch.    4)  PAYMENT  OF   LEGACIES  AND    SHARES.  GJ:J9 

dowable.  These  provisions  by  the  devise  and  bequest  in  behalf  of  his 
wife  are  declared  to  be  in  full  satisfaction  "of  her  dower  and  homestead 
rights  in  my  estate,  and  of  all  distributive  share  or  rights  whatsoever 
therein."  In  Pollard  v.  Pollard,  1  Allen,  490,  it  was  held  that  a  widow 
to  whom  a  legacy  was  given  in  lieu  of  dower  was  entitled  to  be  paid 
in  full,  in  case  of  a  deficiency  of  assets,  in  preference  to  legatees  who 
were  mere  volunteers,  and  also  to  receive  interest  thereon  from  the 
death  of  the  testator,  if  he  had  provided  no  other  means  for  her  sup- 
port during  the  first  year  after  his  death ;  and  this  upon  the  ground 
that  she  is  to  be  regarded  as  a  purchaser  for  value,  by  reason  of  her 
relinquishment  of  her  important  rights  in  her  husband's  estate. 

The  question  here  presented  is,  however,  to  be  decided  according 
to  the  law  of  New  Hampshire.  It  is  not  merely  a  question  of  how 
property  shall  be  here  administered,  but  what  is  the  construction  and 
effect  of  the  will,  and  what  was  the  intent  of  the  testator  by  its  provi- 
sions. The  construction  of  the  will,  and  the  distribution  thereby  made 
of  the  testator's  personal  estate,  are  to  be  governed  by  the  law  of  his 
domicile.  Sewall  v.  Wilmer,  132  Mass.  136 ;  Pub.  St.  c.  138,  §  1.  By 
the  law  of  New  Hampshire,  as  of  Massachusetts,  the  wife  is  treated,  in 
accepting  a  provision  by  will,  as  a  purchaser  for  value,  and  the  general 
rule  which  applies  in  the  case  of  creditors  who  receive  a  legacy  in  sat- 
isfaction of  a  debt,  and  who  are  held  entitled  to  interest  from  the  death 
of  the  testator,  would  apply  where  no  different  intent  is  shown.  Towle 
V.  Swasey,  106  Mass.  100;  Williamson  v.  Williamson,  6  Paige,  298. 
But  by  the  law  of  New  Hampshire,  as  of  Massachusetts,  while  the  wid- 
ow is  a  purchaser  for  value  she  also  has  a  right  to  determine_  whether 
she  will  accept  the  provision  made,  and  to  accept  or  reject  it  as  she 
may  choose.  Gen.  Laws  N.  H.  c.  202,  §§  9,  18 ;  c.  193,  §■  13.  If  she 
accepts  it,  she  must  accept  upon  the  terms  and  conditions  on  which  it 
is. made.  She  can  have  only  what  the  will  gives  her,  and  in  the  mode 
in  which  it  gives  the  property  bequeathed  to  her. 

The  precise  point  decided  in  Pollard  v.  Pollard,  ubi  supra,  does  not 
appear  to  have  been  decided  in  New  Hampshire.  In  Loring  v.  Wood- 
ward, 41  N.  H.  391,  it  is  said  that  to  the  general  rule  there  laid  down, 
that  a  pecuniary  legacy,  payable  generally,  without  designation  of  any 
time  of  payment,  is  payable  at  the  end  of  a  year  from  the  death  of  the 
testator,  without  interest,  and,  if  not  then  paid,  with  interest  after  the 
end  of  the  year,  there  is  one  exception,  which  is  in  favor  of  minor 
children  of  the  testator,  who  are  entitled,  unless  other  provision  is  made 
for  their  support,  tp  interest  upon  their  legacies  from  the  date  of  the 
testator's  decease.  It  is  argued,  therefore,  by  the  residuary  legatees, 
that  in  New  Hampshire  no  such  exception  exists  in  favor  of  the  tes- 
tator's widow  as  has  been  held  to  exist  in  Massachusetts,  as  other- 
wise the  learned  chief  justice  of  New  Hampshire  who  delivered  the 
opinion  would  not  have  failed  to  state  it.  We  shall  not  have  occasion 
to  consider  this  contention,  or  whether  the  language  used  is  fairly  to 


640  PROBATE  AND    ADMINISTRATION.  (Part   3 

be  construed  as  holding  that  no  other  exception  to  the  general  rule  than 
that  specified  actually  exists  in  New  Hampshire. 

We  are  of  opinion  that  upon  other  grounds  the  position  taken  by  the 
residuary  legatees  is  correct.  In  Pollard  v.  Pollard,  ubi  supra,  it  is 
clearly  implied  that  if  .other  provision  is  made  by  the  testator  for  the 
support  of  the  wife,  which  will  avail  her  during  the  year  following  her 
husband's  decease,  she  would  not  be  entitled  to  interest  from  that  time. 
The  legacy  to  Mrs.  Adams  was  accompanied  by  a  devise  to  her  of  five 
pieces  of  productive  real  estate,  to  the  considerable  income  of  which 
she  became  at  once  entitled,  and  the  case  is  not  presented  of  a  widow 
left  without  other  means  of  support  than  her  legacy.  In  Loring  v. 
Woodward  it  is  said  that  minors  are  entitled  to  interest  upon  their 
legacies  from  the  decease  of  the  testator  only  in  those  cases  where  no 
other  provision  was  made.  If,  therefore,  it  can  be  held  that  in  New 
Hampshire  the  same  exception  exists  in  favor  of  the  widow  as  to  the 
allowance  of  interest  that  exists  in  this  commonwealth,  it  cannot  be 
reasonably  doubted  that  it  applies  only  in  those  cases  where  other  provi- 
sion is  not  made  for  her  support.  Again,  it  is  said  in  Loring  v.  Wood- 
ward, ubi  supra,  that  the  general  rules  there  laid  down  on  the  subject 
of  interest  and  income  do  not  apply  where  specific  directions  are  given 
by  the  will,  or  where  a  different  intention  is  to  be  inferred  from  its 
provisions. 

The  inference  is  fairly  to  be  drawn  from  the  provisions  of  Mr. 
Adams'  will  that  he  did  not  intend  that  the  payment  of  the  legacy 
should  be  immediate.  If  a  will  is  silent  as  to  the  time  when  a  legacy 
is  to  be  paid,  one  to  whom  such  a  legacy  is  bequeathed,  and  who  stands 
in  the  position  of  a  purchaser  for  value,  is  entitled  to  have  the  time  of 
payment  determined  by  the  legal  presumption  of  the  intent  of  the  tes- 
tator. If  a  time  were  specified  for  its  payment,  he  could  make  no  claim 
for  any  delay  in  its  payment  except  after  the  expiration  of  the  time 
specified.  By  the  terms  in  which  the  legacy  to  Mrs.  Adams  was  given, 
no  time  for  its  payment  was  specifically  stated;  but  the  provision 
that  "it  shall  be  paid  as  soon  as  convenient  after  my  decease"  dis- 
tinctly shows  that  the  legacy  would  not  be  paid  at  once,  but  that  its 
payment  would  be  governed  by  the  convenience  of  the  estate.  The 
rule  that  legacies  draw  interest  only  after  the  expiration  of  a  year 
contemplates  that  such  a  time  is  a  reasonable  one  for  the  collection  of 
assets  and  reducing  them  to  money.  By  accepting  her  legacy  to  be 
paid  at  the  convenience  of  the  estate,  for  that  is  its  fair  interpretation, 
the  widow  consented  to  wait  for  the  expiration  of  the  usual  time  for  its 
payment.  It  follows  that  she  would  not  be  entitled  to  interest  until 
the  end  of  a  year,  and  such  instruction  is  given  accordingly.* 

The  next  question  reserved  for  our  consideration  by  the  report,  and 

«  Tn  Good  Samaritan  Hospital  v.  Mississippi  Valley  Trust  Co.,  137  Mo.  App. 
170,  117  S.  W.  637  (1909),  it  was  held  that  where  the  probate  of  a  will  is  con- 
tested, and  legacies  therefore  cannot  be  paid  until  the  establishment  of  the 
will,  general  legacies  do  not  bear  interest  pending  the  contest,  since  interest 


Ch.    4)  PAYMENT  OF   LEGACIES  AND    SHARES.  *  641 

on  which  the  bill  requests  instructions,  is  whether  the  interest  upon 
both  the  legacies  of  $64,000  to  the  widow  and  $5,000  to  Julius  Adams, 
is  affected  by  a  deposit  made  on  August  8,  1887,  with  the  New  Eng- 
land Trust  Company,  to  the  credit  of  Julius  Adams,  of  an  amount 
equal  to  these  sums ;  and  also  in  what  manner,  and  at  what  rate,  in- 
terest on  these  sums  shall  be  computed.     *     *     * 

On  August  8,  1887,  the  plaintiffs,  after  some  correspondence  with  Ju- 
lius Adams,  who  had  become  the  administrator  with  the  will  annexed 
of  the  estate  of  his  mother,  who  had  then  deceased,  deposited  with  the 
New  England  Trust  Company  the  amount  of  the  two  legacies  of  $64,- 
000  and  $5,000  (together  with  another  sum  for  rents  collected,  not 
necessary  to  be  here  considered)  to  the  credit  of  Julius  Adams.  These 
sums  were  deposited  without  any  interest  being  included,  the  matter 
of  interest  having  been  the  matter  in  dispute  between  Adams  and  the 
executors.  Adams  never  authorized  or  ratified  this  deposit  with  the 
trust  company,  refused  to  receive  the  deposit  book,  and  has  in  no  way 
recognized  the  deposit,  which  bore  interest  at  the  rate  of  21/2  per  cent. 
He  had  been  informed  before  the  deposit  was  made,  he  having  declined 
to  receive  these  sums  without  interest,  that  they  would  be  thus  de- 
posited unless  he  should  receive  them,  or  designate  some  other  place 
for  their  deposit. 

On  behalf  of  the  residuary  legatees  it  is  contended  that  the  execu- 
tors had  a  right  to  require  Julius  Adams  to  receive,  on  account  of  the 
legacies,  the  principal  of  the  amounts  due;  that  he  was  not  at  liberty 
to  refuse  to  receive  any  portion  unless  the  whole  sum  due  was  paid; 
and  that  the  deposit  of  these  sums  with  the  trust  company  was  a  valid 
appropriation  in  part  satisfaction  of  the  legacies.  It  is  conceded  by 
them  that  the  legacies  carried  interest  from  the  end  of  a  year  after  the 
testator's  death,  and  therefore  that  the  sums  deposited  on  account  of 
the  legacies  were  less  than  the  amounts  due  at  that  time. 

cannot  t)egiD  until  the  legacies  are  payable.  Compare  In  re  Gans'  Will,  130 
App.  Div.  454.  114  N.  Y.  Supp.  97'5  (1909).  But  see  In  re  Woodward's  Estate, 
78  Vt.  254.  62  Atl.  718  (1903),  where  the  court  says  (78  Vt.,  at  page  258,  62 
Atl.,  at  page  719):  "But,  if  the  probating  of  the  will  or  the  granting  of  letters 
is  made  the  controlling  factor,  the  value  of  a  bequest  may  be  lessened  by  a 
postponement  of  payment  without  interest,  on  the  happening  of  a  great  variety 
of  contingencies  which  the  testator  cannot  be  supposed  to  have  had  in  con- 
templation. When  this  takes  place,  the  scheme  of  the  ordinary  will  is  re- 
versed, and  the  more  favored  bequests  are  lessened  in  value  to  increase  the 
residuum."  And  see  In  re  Rutherford.  196  N.  Y.  311,  315.  89  N.  B.  820,  821 
(1909).  where  the  court  said:  "Whether  the  assets  of  the  estate  have  been 
fruitful  or  unproductive  does  not  affect  the  right  of  the  legatee.  He  is  in 
the  same  position  as  a  creditor,  and  entitled  to  be  awarded  interest  at  the 
legal  rate  for  such  time  as  he  is  kept  out  of  his  demand."  Compare  the  ques- 
tion of  when  the  liability  of  a  devisee  for  interest  on  a  legacy  charged  upon 
the  land  or  upon  him  personally  begins.  12  Prob.  Rep.  Ann.  309,  note.  As  ta 
the  devisee's  personal  liability,  see  129  Am.  St.  Rep.  1050,  note.  On  the  dev- 
isee's defense  of  the  statute  of  limitations  to  the  debts  so  charged,  see  S  L. 
R.  A.  (N.  S.)  393,  note. 

Cost.  Wills — 41 


642  PROBATE  AND    ADMINISTRATION.  (Part   3 

The  first  inquiry  which  we  consider  in  this  transaction  is  whether  the 
plaintiffs,  as  executors,  were  then  in  a  position  rightfully  to  make  ap- 
propriations for  the  payment  of  legacies.  If  they  were  not,  Adams 
could  not  be  called  upon  to  deal  with  them,  nor  be  bound  to  assent  to 
their  acts.  *  *  *  On  the  8th  of  August,  1887,  the  plaintiffs  were 
not  executors  in  this  commonwealth.  As  executors  of  a  foreign  will, 
they  had  no  right  to  act  here,  and  to  dispose  of  the  estate  here.  In 
order  that  they  should  have  this  authority,  it  was  necessary  that  the 
will  should  have  been  here  admitted  to  probate,  and  letters  testamentary 

issued  to  them.     Campbell  v.  Sheldon,  13  Pick.  8 ;   Pub.  St.  c.  127,  § 
'j'_     *    *    * 

Adams  was  not  called  upon  to  deal  with  the  plaintiffs  while  occupy- 
ing so  ambiguous  a  position,  or  to  recognize  them  as  having  authority 
as  executors  under  the  laws  of  New  Hampshire  to  deal  with  property 
here  without  having  been  authorized  to  do  so  by  this  commonwealth. 
Until,  in  its  discretion,  thci  probate  court  directed  the  personal  estate 
here  found  to  be  transferred  to  the  foreign  jurisdiction,  executors  there 
could  not  rightfully  deal  with  it.  Many  acts  may  without  doubt  be 
done  by  one  as  executor  previous  to  his  appointment,  as  such,  which, 
if  in  themselves  not  illegal,  and  such  as  an  executor  may  properly  do, 
might  be  validated  by  his  subsequent  appointment  relating  back  to  the 
time  of  doing  the  acts.  No  person,  however,  is  required  to  deal  with 
one  who  may  thereafter  be  appointed  as  executor,  trusting  to  the  chance 
that  he  will  be  appointed,  or  to  consent  to  appropriations  made  by  him 
in  the  anticipation  that  they  may  thereafter  be  lawfully  made.  *  *  * 
At  the  time  when  the  plaintiffs  undertook  to  offer  payment  of  the 
legacies,  to  appropriate  a  sum  therefor,  and  to  make  a  deposit  thereof, 
they  had  no  authority  to  do  so  in  such  manner  that  the  rights  of  the 
legatees  would  be  affected. 

Nor,  irrespective  of  this  matter  of  the  plaintiffs'  authority,  are  we 
of  opinion  that  legatees  are  bound  to  accept  a  payment  by  installments 
which  should  operate  pro  tanto  to  diminish  their  claims,  *  *  *  jj^ 
this  commonwealth,  *  *  *  the  probate  courts  are  authorized  to 
order  partial  distribution  of  the  funds  of  estates  in  the  course  of  ad- 
ministration. Pub.  St.  c.  136,  §  21,  *  *  *  The  existence  of  the 
power  in  the  court  to  order  partial  payments,  and  its  frequent  exer- 
cise, do  not  indicate  that  the  executors  have  any  such  power,  but 
rather  otherwise.  If  the  legatee  or  creditor  should  consent  to  receive 
partial  payments,  which  no  doubt  are  often  made  without  any  or- 
der of  court,  it  certainly  would  be  right  that  interest  on  his  claim 
should  be  diminished.  In  the  case  we  are  considering  the  two  sums 
offered  to  Adams,  and  deposited  to  his  credit,  were  refused  by  him, 
and  it  is  conceded  that  they  did  not  equal,  interest  included,  the 
amount  of  the  legacies  to  which,  in  his  own  right  and  that  of  his 
mother,  he  was  entitled.  Even  if  the  offer  was  made  that  Adams 
should  receive  these  sums  for  the  legacies,  leaving  the  question  of  in- 


Ch.    4)  PAYMENT   OF   LEGACIES  AND    SHARES.  643 

teiest  upon  them  open  for  further  consideration  or  litigation,  he  was 
under  no  obligation  thus  to  accept  them.     *     *     * 

The  question  remains  to  be  determined  at  what  rate  interest  shall 
be  computed.  It  is  urged  on  behalf  of  the  residuary  legatees  that  it 
should  be  something  less  than  the  legal  rate,  and  that  certainly  this 
•should  be  so  after  the  deposit  made  by  the  plaintiffs,  upon  which  only 
21/2  per  cent,  was  to  be  allowed.  In  the  view  we  have  taken,  the  mat- 
ter of  interest  is  not  affected  by  the  deposit.  That  interest  at  the  legal 
rate  is  payable  after  one  year  from  the  testator's  death,  is  well  estab- 
lished as  a  general  rule  in  Massachusetts  and  New  Hampshire.  Loring 
V.  Woodward;  Kent  v.  Dunham,  ubi  supra  [106  Mass.  586]  ;  Ogden 
V.  Pattee,  149  Mass.  82,  21  N.  E.  227,  14  Am.  St.  Rep.  401.  _  Even 
•where  the  estate  could  not  have  been  reduced  to  money  within  that 
time,  or  where  the  administration  had  not  been  taken  for  a  considerable 
time  after  the  death  of  the  testator,  it  would  still  be  allowed  to  the 
legatee  as  an  incident  and  accretion  to  the  legacy.  Ogden  v.  Pattee, 
ubi  supra;  Lamb  v.  Lamb,  11  Pick.  371;  Martin  v.  Martin,  6  Watts 
(Pa.)  67.  This  allowance  is  made,  not  merely  because  it  will  be  pre- 
sumed that  the  estate  will,  after  the  year  has  expired,  have  actually 
made  this  sum,  but  also  because,  as  it  would  be  difficult,  if  not  impos- 
sible, to  investigate  how  much  interest  had  been  made  in  such  cases, 
it  is  a  reasonable  rule  to  adopt  that  rate  of  interest  which  the  law  has 
fixed  where  none  other  is  stipulated  for. 

It  is  urged  that  it  is  a  matter  of  public  knowledge  that  no  interest 
can  now  be  obtained  as  high  as  6  per  cent,  on  any  safe  investment; 
that  such  an  allowance  should  no  longer  prevail ;  that  the  court  should 
determine,  either  directly  or  with  the  aid  of  a  master,  what  could  rea- 
sonably have  been  obtained,  and  that  this  only  should  now  be  allowed. 
It  is  probable  that  the  rate  of  interest  does  not  so  nearly  represent  now 
what  can  be  earned  by  a  safely  invested  fund  as  it  did  when  it  was 
originally  established  by  statute  as  the  legal  rate,  and  that  it  would  be 
difficult  now  to  obtain  it.  But,  as  it  is  inferred  that  where  no  time  is 
specified  for  the  payment  of  a  legacy  it  is  not  to  be  paid  until  the  end 
of  a  year  from  the  death  of  a  testator,  so  it  is  a  reasonable  inference 
that  the  testator  intended,  if  the  legatee  did  not  receive  it  until  some 
time  after  that  period,  that  he  should  then  receive  it  with  the  interest 
allowed  by  law.  His  gift  fairly  imports  this,  because  that  is  the  rate 
where  a  debt  or  payment  which  is  due  in  prassenti  is  deferred.  This 
view  is  not  in  conflict  with  Williamson  v.  Williamson,  6  Paige  (N.  Y.) 
298,  and  Healey  v.  Toppan,  45  N.  H.  243,  86  Am.  Dec.  159. 

The  question  in  these  cases  was  not  between  legatees  of  specified 
sums  and  the  estate,  but  between  those  who  were  the  legatees,  one  class 
of  whom  were  entitled  to  an  estate  for  life  in  the  legacy,  and  the  other 
to  the  remainder.  As  between  them,  there  was  no  doubt  that  the  tenant 
for  life,  after  the  fund  was  actually  formed,  was  entitled  only  to  the 
interest  or  income  which  it  produced.    In  determining  what  should  be 


644  PROBATE  AND    ADMINISTRATION.  (Part   3 

the  basis  of  apportionment  between  them  before  the  settlement  of  the 
estate  and  before  it  was  actually  formed  and  productive,  it  was  deter- 
mined that  5  per  cent,  upon  it  as  ultimately  ascertained  would  be  right, 
as  it  represented  the  income  which  might  have  been  obtained.  It  by 
no  means  follows  that  what  is  right  as  between  legatees  interested  in 
different  proportions  in  the  same  fund  is  a  proper  rule  between  a 
legatee  of  a  definite  sum  and  the  estate  of  the  testator. 

It  is  urged  that  by  the  English  rule  less  than  the  usual  or  legal  rate 
of  interest  is  often  allowed,  and  that  the  amount  of  interest  which 
legatees  are  entitled  to  recover  is  regulated  by  the  court  of  chancery 
with  reference  to  the  amount  which  executors  could  have  made,  and 
that  this  rate  has  been  diminished  from  time  to  time  by  reason  of  the 
change  in  the  value  of  the  interest  upon  money.  Beckford  v.  Tobin, 
1  Ves.  Sr.  308,  311 ;  Guillam  v.  Holland,  2  Atk.  343 ;  Wood  v.  Bri- 
ant,  Id.  523 ;  Sitwell  v.  Bernard,  6  Ves.  520.  The  rule  of  the  court 
of  chancery  appears  from  these  cases  to  have  been  that  it  could  de- 
termine, at  its  own  discretion,  how  much  interest  should  be  allowed,  and 
even  without  inquiry  into  the  circumstances  of  any  particular  case. 
Sitwell  V.  Bernard,  ubi  supra.  No  action  could  have  been  brought  at 
common  law  to  recover,  the  amount  of  a  legacy  which  was  treated  only 
as  a  direction  to  the  executor.  The-  remedy  of  the  legatee  was  only 
in  the  ecclesiastical  courts  or  the  court  of  chancery.  These  courts  have 
always  assumed  the  right  to  determine  the  terms  on  which  the  ben- 
eficiary should  receive  it.  This  is  given  as  one  of  the  reasons  why  an 
action  at  law  should  not  be  maintained  for  it.  Decks  v.  Strutt,  5  Term 
R.  690 ;  Allen  v.  Edwards,  136  Mass.  138. 

In  this  commonwealth  an  action  at  law  has  long  been  the  remedy  to 
recover  the  amount  of  such  a  legacy.  Allen  v.  Edwards,  136  Mass. 
138,  and  authorities  cited.  Such  is  the  rule,  we  believe,  in  most,  if  not 
all,  of  the  states  of  the  Union.  While  in  many  cases  interest  has  been 
recovered,  none  has  been  cited  or  is  known  to  us  where  it  has  been  at 
less  than  the  legal  rate.  It  has  been  recovered  upon  the  same  principle 
that  it  is  awarded  in  any  case  where  the  payment  of  a  debt  due  has  been 
deferred.  We  have  no  reason  to  believe  that  the  law  of  New  Hamp- 
shire in  this  respect  differs  from  that  which  prevails  in  this  common- 
wealth, and  we  do  not  feel  authorized  to  change  the  rule  so  long  as 
the  statute  remains  unchanged  which  fixes  a  rate  of  interest.  Kent 
V.  Dunham,  ubi  supra;  Ogden  v.  Pattee,  ubi  supra;  Pub.  St.  c.  77, 
§  3;  Wood  v.  Corl,  4  Mete.  203;  Loring  v.  Woodward,  ubi  supra; 
Gen.  Laws  N.  H.  c.  232,  §  2. 

The  executors  are  therefore  instructed  that  the  legacies  of  $5,000 
and  $64,000  are  payable,  with  legal  interest,  in  a  year  from  the  death 
of  the  testator.    Instructions  accordingly.* 

«  On  the  rate  of  interest,  see  Loring  v.  Thompson,  184  Mass.  103,  68  N.  B 
46  (1903). 


Ch.   4)  PAYMENT  OF   LEGACIES  AND    SHARES.  645 

WELSH  V.  BROWN. 
(Supreme  Court  of  New  Jersey,  1881.    43  N.  J.  Law,  37.) 

On  writ  of  error  to  Morris  circuit. 

Catherine  Welsh  died  on  the  22d  of  April,  1874.  By  her  will, 
dated  April  20th,  in  the  same  year,  she  made  to  the  plaintiff  the  fol- 
lowing bequest: 

"I  do  give  and  bequeath  to  my  niece,  Aletta  Brown,  my  gold  watch, 
my  melodeon,  my  black  earrings,  my  black  furs,  one  set  silver  tea- 
spoons (second  choice),  my  cashmere  shawl,  my  brown  silk  dress, 
and  the  interest  of  twenty-five  hundred  dollars,  to  be  paid  to  her  an- 
nually by  my  executor;  and  at  her  death  the  said  sum  of  twenty-five 
hundred  dollars  shall  be  paid  to  or  divided  equally  among  any  child 
or  children  of  hers  that  may  then  be  living,  or  their  heirs ;  but  if  the 
said  Aletta  Brown  shall  die  leaving  no  children  or  grandchildren  liv- 
ing, then  I  do  order  the  said  sum  of  twenty-five  hundred  dollars  di- 
vided equally  among  my  heirs.  I  also  give  her  all  my  mourning 
clothing." 

She  also  gave  sundry  pecuniary  legacies  and  specific  legacies  of 
personal  property  to  different  legatees,  after  which  the  will  contained 
the  following  provisions: 

"I  do  order  that  none  of  the  legacies  or  interest  herein  given  or 
bequeathed  shall  be  due  or  payable  during  the  lifetime  of  my  mother, 
but  that  all  interest  that  may  acci'ue  or  become  due  on  any  obligations 
belonging  to  my  estate  shall  be  used  for  the  comfort  and  support  of 
my  mother;  and  if  said  interest  is  not  sufficient,  then  I  do  order  my 
executor  to  pay  out  of  my  estate  such  sum  as  may  become  necessary 
for  the  support  of  my  said  mother  and  for  her  burial." 

She  further  orders  and  directs  as  follows:  "I  do  order  and  direct 
that  all  taxes  that  may  be  levied  or  assessed  on  any  money  or  interest 
herein  bequeathed  or  given  away  shall  first  be  deducted  from  the  said 
money,  and  the  balance  paid,  and  said  money  or  interest  shall  be  sub- 
ject to  the  taxes  as  long  as  it  remains  in  the  hands  or  control  of  my 
executor.  *  *  *  I  do  order  and  direct  that,  after  putting  at  interest 
a  sum  sufficient  to  pay  the  interest,  and  paying  the  legacies  herein  be- 
queathed, and  after  settling  my  estate,  if  any  balance  shall  be  found 
due  my  estate  or  in  the  hands  of  my  executor,  he  shall  then  divide 
such  sum,  share  and  share  alike,  among  my  heirs." 

This  action  was  brought  by  Miss  Brown,  the  legatee,  against  the 
executor  of  the  deceased,  to  recover  $175,  one  year's  interest  on  the 
said  sum  of  $2,500,  accruing  between  the  22d  of  April,  1874,  and  the 
22d  of  April,  1875.  The  defendant  demurred  to  the  declaration,  and 
the  question  designed  to  be  raised  by  the  demurrer  was,  whether,  un- 
der the  bequest  to  the  plaintiff,  she  was  entitled  to  interest  on  the 
said  sum  of  $2,500  from  the  death  of  the  testatrix,  or  from  the  ex- 
piration of  one  year  from  that  event. 


646  PROBATE  AND    ADMINISTRATION.  (Part    3 

This  question  the  court  below  decided  in  favor  of  the  plaintiff  be- 
low.    Hence  this  writ  of  error. 

Depue,  J.  In  determining  as  of  what  time  legacies  shall  take  effect 
and  be  payable,  certain  general  rules  have  been  adopted ;  and  testators, 
in  making  their  wills,  are  considered  as  framing  their  testamentary 
dispositions  in  view  of  those  general  rules. 

Specific  legacies  are  treated  as  severed  from  the  bulk  of  the  tes- 
tator's property  by  the  operation  of  the  will,  and  their  increase  and 
emolument  are  regarded  as  specifically  appropriated  for  the  benefit 
of  the  legatee  from  that  period;  though  the  time  for  the  enjoyment 
of  the  principal  may  be  postponed  to  a  future  period.  With  respect 
to  general  legacies,  the  law,  for  convenience,  has  prescribed,  as  a  gen- 
eral rule,  that  where  no  time  is  named  by  the  testator,  and  in  the  ab- 
sence of  any  intention  derived  from  the  will  itself,  such  general  lega- 
cies shall  be  raised  and  satisfied  out  of  the  testator's  estate  at  the  ex- 
piration of  one  year  next  after  his  death.  2  Roper  on  Leg.  1245 ;  2 
Lead.  Cas.  in  Eq.  639,  notes  to  Ashburner  v.  MacGuire. 

On  a  legacy  coming  within  the  class  of  general  legacies,  if  the 
legacy  be  not  paid  at  the  expiration  of  the  year,  interest  from  that  time 
will  be  allowed  as  damages;  and  interest  on  a  legacy  will  not  be  com- 
puted from  a  period  prior  to  that  time,  unless  there  be  a  clear  ex- 
pression of  intention  that  interest  shall  be  reckoned  from  an  antece- 
dent time  or  event.  In  that  case  the  interest  is  regarded  as  of  the  sub- 
stance of  the  gift,  and  is  not  recoverable,  as  such,  unless  there  be  a 
clear  intention  apparent  on  the  face  of  the  will  that  interest  shall  be 
payable  from  a  period  prior  to  the  expiration  of  the  year. 

To  this  general  rule  there  are  a  few  well-established  exceptions.  A 
legacy  given  in  satisfaction  of  a  debt  will  carry  interest  from  the  tes- 
tator's death.  Clark  v.  Sewell,  3  Atk.  99.  Interest  on  a  legacy  to  a 
minor  child  of  the  testator,  or  to  one  to  whom  the  testator  is  in  loco 
parentis,  will  be  allowed  from  the  testator's  death  as  a  provision  for 
maintenance,  where  no  provision  is  made  by  will  or  otherwise  for  the 
support  of  such  legatee.  Brinkerhoff  v.  Merselis,  24  N.  J.  Law,  680 ; 
Cox  v.  Corkendall,  13  N.  J.  Eq.  138;  Hennion's  Ex'rs  v.  Jacobus,  27 
N.  J.  Eq.  28 ;  Ex'r  of  Kearney  v.  Kearney,  17  N.  J.  Eq.  59,  63.  501. 

Where  the  bequest  is  of  an  annuity,  in  the  absence  of  any  direction 
to  the  contrary,  the  annuity  will  commence  from  the  death  of  the 
testator,  and  the  first  payment  become  due  at  the  end  of  the  first 
year  from  that  event.  In  this  respect  an  annuity  differs  from  a  gen- 
eral legacy;  for  a  general  legacy,  not  being  payable  out  of  the  tes- 
tator's assets  before  the  end  of  the  year  from  the  testator's  death,  no 
interest  will  be  due  thereon  until  the  expiration  of  the  second  yean 
2  Rop.  on  Leg.  1215.'' 

B  Interest  wns  allowed  on  the  \inpaid  annual  payments  of  an  annuity  In 
Wlllcox  V.  Willcox,  lOG  Va.  G2G,  m  S.  E.  5S8  (1907). 


Ch.    4)  PAYMENT  OF   LEGACIES  AND    SHARES.  647 

There  is  another  class  of  cases  which  are  apparently  exceptions 
to  this  general  rule;  but  those  cases  stand  upon  peculiar  and  special 
grounds,  and  are  regarded  as  a  class  by  themselves.  On  a  bequest  of 
the  residue  of  the  testator's  estate,  or  of  some  aliquot  part  or  propor- 
tion thereof,  in  trust  to  pay  the  interest  or  income  to  a  legatee  for  life, 
with  a  gift  of  the  principal  over  at  his  death,  the  interest  or  income 
payable  to  the  life  tenant  will  be  computed  from  the  testator's  death. 
Green  v.  Green,  30  N.  J.  Eq.  451 ;  Green  v.  Blackwell,  32  N.  J.  Eq. 
768 ;  Van  Blarcom  v.  Dager,  31  N.  J.  Eq.  783 ;  2  Spence's  Eq.  Jur. 
552-569;  Howe  v.  Earl  of  Dartmouth,  7  Ves.  137,  and  the  notes  to 
that  case  in  2  Lead.  Cas.  in  Eq.  686  et  seq. 

Cases  of  this  class  are  distinguished  from  legacies  of  a  definite  sum 
with  remainder  over,  with  respect  to  the  computation  of  interest  to 
the  life  tenant.  2  Wms.  on  Ex'rs,  1391 ;  Fearns  v.  Young,  9  Ves.  549, 
per  Lord  Eldon;  Baker  v.  Baker,  6  H.  of  L.  Cas.  623,  per  Lord 
Chelmsford;  Van  Blarcom  v.  Dager,  31  N.  J.  Eq.  783,  per  Dodd,  J. 
In  the  case  last  cited,  the  computation  from  the  testator's  death  of 
interest  or  income  to  the  life  tenant,  where  the  gift  is  of  the  residue, 
is  placed  on  a  special  equity  as  between  the  parties  who  are  to  partici- 
pate in  the  gift,  arising  from  the  injustice  that  would  be  done  to  the 
life  tenant  by  the  addition  of  the  entire  interest  to  the  capital.  2  Rop. 
on  Leg.  1320. 

That  the  computation  of  interest  as  between  the  life  tenant  and  re- 
mainderman, where  the  corpus  of  the  gift  is  the  residue  of  the  tes- 
tator's estate,  is  founded  exclusively  on  the  special  equity  between 
the  parties  among  whom  the  gift  is  to  be  apportioned,  is  apparent 
from  an  examination  of  the  cases.  For  the  first  year,  sometimes,  the 
interest  on  the  whole  income  is  allowed  the  life  tenant;  sometimes 
only  a  portion  of  the  income  for  the  first  year  is  allotted  to  the  life 
tenant,  and  the  balance  is  added  to  increase  the  capital,  for  the  reason 
that,  in  such  cases,  the  circumstances  are  such  that  it  would  be  in- 
equitable to  the  remainderman  to  give  the  whole  produce  of  the  first 
year  to  the  life  tenant ;  and  sometimes  the  allowance  to  the  life  tenant 
for  the  first  year  is  upon  a  percentage  determined  by  the  court,  on  a 
consideration  of  what  would  be  just  and  equitable  as  between  the  par- 
ties, under  the  circumstances  of  the  particular  case.  Hewitt  v.  Morris, 
1  Turn.  &  Russ.  241 ;  Fearns  v.  Young,  9  Ves.  552 ;  Brown  v.  Gell- 
atly,  L.  R.  2  Ch.  App.  751 ;  2  Spence's  Eq.  Jur.  558  et  seq. 

The  apparent  conflict  in  the  decisions  on  this  subject  is  in  a  large 
measure  due  to  the  failure  to  observe  the  special  grounds  on  which 
the  computation  of  interest  is  made  as  between  the  life  tenant  and  re- 
mainderman, where  the  corpus  of  the  gift  is  the  residue  of  the  tes- 
tator's estate.  Some  of  it  is  also  attributable  to  expressions  used  in 
that  class  of  cases  where  interest  is  allowed  by  way  of  maintenance 
for  minor  children,  or  those  to  whom  the  testator  is  in  loco  parentis. 
If  those  cases  which  are  universally  considered  as  exceptional,  and 


C48  PROBATE  AND    ADMINISTRATION.  (Part   3 

resting  on  special  and  peculiar  grounds,  are  put  aside,  the  decisions 
the  subject  of  interest  on  legacies  are  quite  consistent  and  har- 


as 
on 
monious. 


The  contention  upon  which  the  judgment  below  is  sought  to  be  sus- 
tained is,  that  the  gift  to  Miss  Brown  is  of  an  annuity,  and  that  the 
intention  of  the  testatrix  to  pay  her  interest  from  her  death  is  to  be 
deduced  from  the  language  of  the  bequest. 

An  annuity  is  defined  to  be  a  yearly  payment  of  a  certain  sum  of 
money.  2  Wms.  on  Ex'rs,  809 ;  Booth  v.  Ammerman,  4  Bradf.  Sur. 
(N.  Y.)  129.  The  first  payment  of  an  annuity  given  by  will  is  due  at 
the  end  of  one  year  from  the  testator's  death.  This  is  one  of  the  ex- 
ceptions to  the  general  rule  with  respect  to  the  enjoyment  by  a  life 
tenant  of  the  benefits  given  by  will.  Where  a  general  legacy  is  given 
to  one  for  life,  with  remainder  over  to  another,  no  interest  will  be  due 
until  the  expiration  of  the  second  year.     2  Rop.  on  Leg.  1253. 

This  distinction  between  an  annuity  and  a  legacy  for  life  with  re- 
mainder over,  was  taken  by  Lord  Eldon  in  Gibson  v.  Bott,  7  Ves.  89, 
96.  His  language  is:  *lf  an  annuity  is  given,  the  first  payment  is 
paid  at  the  end  of  one  year  from  the  death ;  but  if  the  legacy  is  given 
for  life,  with  remainder  over,  no  interest  is  due  till  the  end  of  two 
years ;  it  is  only  interest  on  the  legacy,  and  until  the  legacy  is  payable 
there  is  no  fund  to  produce  interest."  Mr.  Roper  approves  of  this 
distinction  as  founded  on  principle,  and,  speaking  of  the  disposition  of 
a  sum  of  money  and  the  interest  of  it  given  as  an  annuity  to  one  for 
life,  says  that  the  annuity,  being  given  in  the  form  of  interest  upon  a 
gross  sum  of  money  to  be  taken  out  of  the  assets  as  any  other  legacy, 
cannot  be  payable  sooner  than  the  fund  produces  the  means  for  that 
purpose.     2  Rop.  on  Leg.  877. 

In  the  present  case  the  gift  to  the  plaintiflf  is  of  the  interest  on  a 
gross  sum — $2,500 — to  be  paid  to  her  annually  by  the  executor;  and 
after  the  plaintiff's  death  the  principal  sum  is  payable  to  other  parties. 
The  will  provides  that  the  executor,  after  putting  out  at  interest  a  sum 
sufficient  to  pay  the  interest  and  legacies  bequeathed,  shall  divide  the 
residue  among  the  heirs  of  the  testatrix.  It  further  directs  that  all 
taxes  on  the  money  or  interest  bequeathed  should  first  be  deducted, 
and  the  balance  only  paid,  and  that  the  said  money  or  interest  should 
be  subject  to  the  taxes  as  long  as  it  remained  in  the  hands  or  under 
the  control  of  the  executor. 

In  substance  the  bequest  is  to  the  executor  to  invest  and  pay  over 
the  net  income  or  interest,  after  deducting  taxes,  to  the  life  tenant 
during  her  life,  and  after  her  death,  to  pay  the  entire  principal  to  the 
legatees  in  remainder.  The  executor,  in  the  administration  of  the  es- 
tate as  executor,  was  under  no  obligation  to  set  apart  the  principal 
sum  on  which  interest  was  allowed  until  the  end  of  the  first  year ;  and 
until  that  separation  was  made,  there  was  no  fund  to  produce  interest 
for  the  life  tenant.  In  legal  eflFect  the  bequest  is  analogous  to  those 
in  Lowndes  v.  Lowndes,  15  Ves.  301,  and  Raven  v.  Waite,  1  Swanst. 


Ch.    4)  PAYMENT  OF   LEGACIES  AND    SHARES.  *        649 

553,  upon  which  interest  was  allowed  only  from  the  expiration  of  the 
year. 

In  my  examination  of  the  English  cases,  I  have  not  found  a  single 
decision  in  which  a  bequest  similar  to  that  under  consideration,  has 
been  considered  as  excluded  from  the  general  rule  that  the  legacy 
shall  for  such  purposes,  take  effect  after  the  lapse  of  the  year.     The 
distinction  between  an  annuity  pure  and  simple,  which  is  to  be  paid  at 
all  events  out  of  the  testator's  estate  at  the  expense  of  the  residuary 
legatee,  and  the  interest  or  income  for  life,  of  a  certain  sum  set  apart 
by  the  testator  for  that  purpose,  and  given  over  in  gross  to  another 
after  the  death  of  the  life  tenant,  has  been  quite  uniformly  adhered  to. 
Baker  v.  Baker,  supra,  was  decided  upon  that  distinction.    Lord  Cran- 
worth,  in  delivering  his  opinion,  said:    "In  all  these  cases  arising  upon 
the  construction  of  wills,  the  real  question  is,  whether  that  which  is 
given  is  given  as  an  annuity,  or  is  given  as  the  interest  of  a  fund ;  and 
where  that  question  is  to  be  considered,  what  you  must  look  to  is  this : 
whether  the  language  of  the  testator  imports  that  a  sum,  at  all  events, 
is  annually  to  be  paid  out  of  his  general  estate,  or  only  the  interest, 
or  a  portion  of  the  interest,  of  a  capital  sum  which  is  to  be  set  apart." 
This  distinction  is  recognized  by  Lord  Justice  Rolt  in  Birch  v.  She- 
wall,  L.  R.  2  Ch.  App.  649.    The  principle  on  which  it  rests  is  that  a 
bequest  of  a  specific  sum  of  money  is  one  gift,  one  legacy,  the  bene- 
fit of  which  the  testator  has  apportioned  between  the  donee  for  life 
and  the  remainderman.     To  the  life  tenant  he  has  given  the  interest 
or  produce  of  the  fund  during  life,  and  the  capital  sum  to  the  re- 
mainderman after  the  death  of  the  former.     Such  a  legacy  is,  there- 
fore, subject  to  the  rule  that  general  legacies  are  to  take  effect  and 
be  payable  at  the  expiration  of  a  year  from  the  testator's  death.    The 
executor  is  not  bound  to  set  apart  the  legacy  for  investment  before  the 
end  of  the  year;  and  until  that  be  done  there  is  no  fund  to  produce 
the  interest  that  is  payable  to  the  life  tenant. 

In  Knight  v.  Knight,  2  Sim.  &  Stu.  490,  the  bequest  was  to  each 
of  the  children  of  T.  W.,  "as  soon  as  they  attain  the  age  of  twenty-one 
years,  the  sum  of  i2,000,  with  interest  at  the  rate  of  five  per  cent,  per 
annum ;"  and  interest  was  held  to  be  computable  only  from  the  end  of 
the  year,  for  the  reason  that  the  executors  would  not  be  bound  to 
make  an  investment  for  the  security  of  the  legatees  until  the  end  of  the 
year. 

In  the  courts  of  this  country  the  weight  of  authority  is  in  the  same 
direction.*     *     *     * 

I  think  that  for  the  reason  already  given,  the  judgment  should  be 
reversed. 

It  may  be  remarked  that,  on  a  ground  that  may  be  technical,  and 
was  not  taken  on  the  argument,  the  same  result  would  be  reached. 
The  testatrix  directs  that  none  of  the  legacies  or  interest  given  or 

«  The  discussion  of  the  American  cases  is  omitted. 


650  PROBATE  AND    ADMINISTRATION.  (Part   3 

bequeathed,  shall  be  due  or  payable  during  the  lifetime  of  her  mother. 
A  copy  of  the  will  is  annexed  to  the  declaration,  and  by  averment, 
made  part  of  it ;  and  the  death  of  the  mother  of  the  testatrix  is  no- 
where averred  in  the  pleading. 
Judgment   reversed. 


In  re  FLICKWIR'S  ESTATE. 

Appeal  of  JORDAN. 

(Supreme  Court  of  Pennsylvania,  1890.     136  Pa.  374,  20  Atl.  518.) 

Under  the  will  of  the  testatrix  various  legacies  were  given  to  the 
executors  in  trust.  The  legacies  in  trust  were  all  substantially  in  the 
following  form:     "I  give  and  bequeath  to  my  executors,  hereinafter 

named,  the  sum  of  $ ,  in  trust,  nevertheless,  to  pay  the  interest 

and  income  thereof  to  A.  B.  for  life,  and  at  her  decease  to  pay  and 
distribute  the  principal  to  C.  D."  etc.  The  estate  being  large  enough 
to  pay  all  the  particular  legacies  and  leave  a  residuary  estate  of  about 
$77,000,  the  beneficiaries  for  life  under  the  bequests  to  the  executors 
asked  the  court  to  award  them  interest  from  the  death  of  the  tes- 
tatrix upon  the  respective  sums  so  bequeathed.  This  the  court  did, 
and  three  of  the  residuary  legatees  appealed. 

Mitchell,  J."^  Act  Feb.  24,  1834,  ■§  51  (P.  L.  83),  provides  that 
"legacies,  if  no  time  be  limited  for  the  payment  thereof,  shall  in  all 
cases  be  deemed  to  be  due  and  payable  at  the  expiration  of  one  year 
from  the  death  of  the  testator."  As  interest  only  accrues  by  contract, 
or  as  damages  for  default  of  payment  of  money  which  is  due,  it  fol- 
lowed that  the  deferring  of  the  period  of  payment  also  postponed  the 
accrual  of  interest  until  a  year  from  testator's  death.  This  is,  there- 
fore, the  general  rule,  and  it  was  the  well-settled  rule  of  the  common 
law  long  prior  to  the  date  of  the  statute.  It  is,  however,  purely  a 
rule  of  administrative  convenience.     It  has  no  other  merit. 

Certainly,  to  take  an  example  from  the  case  in  hand,  there  is  no  in- 
herent equity  in  mulcting  the  primary  legatees  of  a  solvent  estate,  in 
a  year's  income,  for  the  benefit  of  the  residuaries,  presumably  the  low- 
est in  the  scale  of  the  testator's  intended  bounty.  Being  a  rule  of 
convenience  only,  it  gives  way  at  all  times  to  the  intent  of  the  tes- 
tator, whether  express,  as  provided  for  in  the  statute  itself,  or  im- 
plied from  the  general  scheme  of  the  will,  or  from  particular  expres- 
sions, or  from  the  situation  of  the  legatee,  especially  with  reference 
to  the  testator.  Certain  exceptions,  therefore,  arising  primarily  from 
the  testator's  intent,  have  become  as  firmly  established  as  the  rule  it- 
self.    The  one  with  which  we  are  specially  concerned  is  the  case  of 

T  The  statement  of  facts  is  rewritten  and  abbreviated.  Tlie  opinion  in  the 
court  below  is  omitted. 


Ch.    4c)  PAYMENT  OF   LEGACIES  AND    SHARES.  651 

an   annuity,   or   its   practical   equivalent— the   interest   of   a   sum  of 

money. 

It  is  settled  that  an  annuity  given  as  such  commences  from  the  tes- 
tator's death.  Rop.  Leg.  877.  In  Gibson  v.  Bott,  7  Ves.  96,  Lord 
Eldon  said  that  that  was  certainly  the  rule,  but  he  remembered  when 
it  was  not  clear.  In  the  same  case  he  states  that  if  a  legacy  is  given 
for  life,  with  remainder  over,  no  interest  is  payable  until  the  second 
year,  and  intimates  that  that  is  also  the  rule  where  a  sum  is  given  to 
be  placed  out  to  produce  an  annuity.  On  this  authority,  Roper  lays 
down  the  rule  that  interest  on  a  gross  sum  given  as  an  annuity  does 
not  commence  till  a  year  after  death.  Roper,  however,  says  there  is 
no  express  decision  to  this  effect,  and  Toller  says  the  point  is  doubt- 
ful. Toller,  Ex'rs,  324.  This  was  the  state  of  the  authorities  when 
the  point  came  before  this  court,  and  the  distinction  intimated  by 
Lord  Eldon  was  repudiated. 

In  Eyre  v.  Golding,  5  Bin.  472,  the  gift  was  to  R.,  of  ^"the  interest 
of  i400,  to  be  paid  her  annually  during  her  natural  life."  Chief  Jus- 
tice Tilghman  held  that  interest  was  payable  from  the  date  of  tes- 
tator's death,  saying:  "The  devise  is  not  of  a  gross  sum,  but  in  the 
nature  of  an  annuity.  *  *  *  The  first  payment  of  the  annuity 
must  be  made  at  the  end  of  the  first  year,  or  the  intention  of  the  tes- 
tator is  not  complied  with.  You  must  count  the  time  immediately 
from  his  death,  or  the  legatee  will  not  receive  the  annuity  annually 
during  her  life."  Tilghman,  J.,  laid  much  stress  on  the  word  "an- 
nually." 

But  in  Hilyard's  Estate,  5  Watts  &  S.  30,  the  bequest  was  "m  trust 
to  place  the  same  out  at  interest  and  pay  the  interest  and  income  there- 
of, when  and  as  the  same  shall  be  got  in  and  received,  unto  my  sister 
K.',  for  and  during  all  the  term  of  her  natural  life."  The  word  "an- 
nually" did  not  occur  at  all,  and  yet  Sergeant,  J.,  says:  "Between 
Eyre  v.  Golding  and  the  case  before  us  I  perceive  no  difference.  In- 
terest is  in  its  nature  an  annual  profit,  and  a  direction  to  pay  interest 
makes  it  payable  annually,  without  anything  further."  After  stating 
the  general  rule,  he  proceeds :  "Where,  however,  it  is  not  a  bequest  of 
the  corpus,  but  of  an  income  or  annuity,  there  a  contrary  rule  prevails ; 
and  the  legatee  of  interest  for  life  has  been  allowed  it  from  the  death 
of  the  testator."  It  will  be  observed  that,  in  this  connection,  "in- 
come" and  "annuity"  are  treated  as  synonymous  by  Justice  Sergeant, 
and  by  his  reporters  in  their  syllabus,  just  as  "interest  payable  an- 
nually," and  "annuity,"  had  been  treated  by  Chief  Justice  Tilghman 
and  by  Mr.  Binney  in  reporting  Eyre  v.  Golding. 

Hilyard's  Estate  was  decided  after  full  review  of  the  English  chan- 
cery authorities,  and  has  been  considered  as  settling  the  law.  It  was 
followed  in  Spangler's  Estate,  9  Watts  &  S.  135,  where  Gibson,  C.  J., 
says :  "Where  the  corpus  of  the  legacy  is  interest  accruing  on  a  resi- 
due after  payment  of  debts,  and  not  the  residue  itself,  it  is  well  set- 
tled that  unless  a  contrary  intent  is  collectible  from  the  tenor  of  the 


652  PROBATE  AND    ADMINISTRATION.  (Part   3 

will,  the  legatee  is  entitled  to  all  that  is  made  from  the  death  of  the 
testator."  And  in  Pennsylvania  Co.'s  Appeal,  41  Leg.  Int.  26,  the 
auditor  held  that  there  was  no  difference  between  "income"  and  "an- 
nuity," and  this  court  affirmed  the  decision  in  a  per  curiam  opinion, 
although  in  this  case,  as  in  Hilyard's  Estate,  there  were  expressions 
in  the  will  which  might  afford  ground  for  argument  that  the  testator's 
actual  intent  was  to  postpone  the  commencement  of  the  interest  for  a 
period  after  his  death. 

These  cases  are  authoritative  on  the  present  contention;  but,  even 
if  they  were  less  so,  they  should  be  followed  as  consonant  to  sound 
reason.  There  is  no  substantial  dift'erence  in  legal  aspect  between 
the  gift  of  an  annuity  for  life  and  of  the  interest  or  income  of  a  fund 
for  life,  nor  between  the  gift  simply  of  interest  and  of  interest  payable 
annually.  Interest  accrues  de  die  in  diem,  but  it  is  calculated  at  a  rate 
per  annum.  In  the  popular  understanding,  it  is  chargeable  annually, 
and  payable  the  same  way,  unless  custom  or  contract  or  specific  direc- 
tion makes  it  payable  at  shorter  intervals.  The  idea  is  so  clearly  im- 
plied that  the  actual  use  or  omission  of  the  word  "annual"  in  the  will 
does  not  seriously  affect  the  intent  and  purpose  of  the  testator.  To 
make  distinctions  which  depend  not  on  his  intention,  but  on  the  skill 
of  his  draughtsman,  is  contrary  to  reason  and  sound  law,  and  is  not 
to  be  encouraged. 

Decree  affirmed,  at  cost  of  appellants. 


In  re  CRANE. 
ADAMS  v.  CRANE. 

(Supreme  Court  of  Judicature,  Chancery  Division.     [1908]  1  Ch.  379.) 

SwiNFEN  Eady,  J.*  Interest  from  the  testator's  death  is  claimed 
upon  the  £8,000  trust  legacy  upon  the  footing  that,  although  not  ex- 
pressly given,  an  intention  to  give  it  in  the  shape  of  maintenance  is 
fairly  inferable. 

The  income,  however,  of  this  legacy  is  not  given  to  any  infants  for 
their  maintenance,  but  to  an  adult  person,  subject  to  the  obligation  on 
her  part  of  maintaining  and  educating  the  infants,  and  I  am  not  ;aware 
of  any  case  in  which,  under  such  circumstances,  interest  has  been  al- 
lowed. 

In  Leslie  v.  Leslie,  LI.  &  G.  t.  Sugden,  1,  which  followed  Pett  v. 
Fellows,  1  Swans.  561,  note,  interest  from  the  death  was  allowed  to 
infant  grandnephews,  because  the  fund  was  expressed  to  be  given 
"for  the  use  and  support  of  the  younger  children."  And  so  in  In 
re  Richards,  L.  R.  8  Eq.  119,  interest  was  allowed  from  the  death  to 
certain  infant  grandnephews  of  the  testator,  to  whom  the  testator  was 

•  The  statement  of  facts  is  omitted. 


Ch.    4)  PAYMENT  OF  LEGACIES  AND    SHARES.  653 

not  in  loco  parentis,  because  the  will  empowered  the  executors  to 
apply  all  or  any  part  of  the  expectant  share  of  any  children,  or  the 
income  thereof,  towards  his  or  her  education,  or  otherwise  for  his  or 
her  benefit  during  minority. 

In  all  these  cases  the  beneficiaries  were  infants,  and  the  ground 
upon  which  interest  was  allowed  was  that  the  testator  had  impliedly 
directed  that  interest  should  be  payable  from  his  death,  otherwise  there 
would  not  be  any  fund  for  maintenance. 

This  rule  has  not  been  extended  to  the  case  of  adults. 

In  Raven  v.  Waite,  1  Swans.  553,  559,  a  sum  of  £1,600  was  be- 
queathed to  trustees  upon  trust  to  apply  the  interest  towards  the  main- 
tenance and  support  of  Frances  Raven  (the  wife  of  testator's  nephew 
John  Raven,  from  whom  she  was  living  separate),  and  the  mainte- 
nance, education,  and  bringing  up  of  her  children  until  the  youngest 
should  attain  twenty-one,  and  after  that  event  to  pay  the  income  to 
Frances  Raven  so  long  as  she  remained  the  wife  or  widow  of  her 
present  husband,  with  a  direction  that,  in  case  of  her  death  or  re- 
marriage before  that  event,  the  trustees  should  take  the  children  un- 
der their  sole  care  and  management  and  apply  the  interest  towards  the 
maintenance,  education,  and  bringing  up  of  the  children  until  the 
youngest  should  attain  twenty-one.  The  bill  was  filed  by  Frances 
Raven  to  establish  her  claim  to  interest  on  the  £1,600  from  the  tes- 
tator's death;  but  Sir  Thomas  Plumer,  M.  R.,  dismissed  the  bill.  He 
said  that  all  the  cases  in  which  an  exception  had  been  admitted  to  the 
rule  against  allowing  interest  before  one  year  from  testator's  death 
had  been  cases  of  infants ;  that  no  case  had  been  produced  in  which 
the  exception  ever  was  extended  to  a  legacy  in  favour  of  an  adult, 
though  cases  innumerable  must  have  occurred  of  legacies  to  persons 
aged  and  decrepit,  objects  of  the  testator's  bounty  during  his  life. 
He  added :  "It  is  then  insisted  that  this  is  a  provision  for  the  joint 
benefit  of  an  adult  parent  and  her  infant  children,  and  that  the  ex- 
ception in  favour  of  the  infants  must  prevail.  But  the  gift  here  is  to 
the  mother,  to  enable  her  to  maintain  herself  and  her  children,  and 
the  legacy  is  payable  to  her  during  her  life;  after  her  death,  indeed, 
the  trustees  are  to  apply  it  for  the  maintenance  of  the  children,  but  the 
mother  is  the  primary  object  of  the  testator's  bounty.  Such  a  gift 
cannot  form  an  exception  to  the  rule." 

I  therefore  decide  that  the  legacy  of  £8,000  does  not  carry  interest 
for  the  period  between  the  testator's  death  and  the  dates  upon  which 
the  instalments  of  the  legacy  are  paid. 


654  PROBATE  AND    ADMINISTRATION.  (Part   3 


THAYER  V.  PAULDING  et  al. 

(Supreme  Judicial  Court  of  Massachusetts,  Worcester,  1908.    200  Mass.  98,  85 

N.  E.  868; 

Knowlton,  C.  J.  In  the  will  of  Edward  Greene,  there  is  a 
legacy  to  James  P.  Paulding  of  "125  shares  of  the  capital  stock  of  the 
Rand  Drill  Company  of  New  York,  a  corporation,  *  *  *  to- 
gether with  all  the  rights  and  privileges  which  may  now  or  here- 
after appertain  to  the  same."  Within  less  than  one  year  after  the 
death  of  the  testator,  dividends  on  this  stock,  amounting  to  $825.16, 
were  paid  to  the  petitioner  as  executor,  and  the  question  presented  is 
whether  these  dividends  should  be  paid  to  the  legatee,  or  used  as  a 
part  of  the  general  funds  of  the  estate.  This  involves  the  question 
whether  the  gift  of  this  amount  of  stock  is  a  specific  legacy  or  a  gen- 
eral legacy.  If  it  is  a  specific  legacy  it  covers  this  number  of  shares 
of  stock  held  by  the  testator  at  the  time  of  making  his  will,  together 
with  all  their  accretions  from  the  time  of  his  death  to  the  time  when 
the  legacy  should  be  turned  over  by  the  executor  to  the  legatee,  name- 
ly, to  the  expiration  of  one  year  from  the  time  of  the  testator's  death. 
If  it  is  a  specific  legacy  there  would  have  been  an  ademption  of  it 
which  would  have  left  the  legatee  with  nothing,  if  the  particular  prop- 
erty had  ceased  to  exist,  or  been  disposed  of  by  the  testator  in  his 
lifetime.  On  the  other  hand,  if  it  is  a  general  legacy  it  gave  the 
legatee  a  right  which  vested  on  the  death  of  the  testator  to  have  this 
number  of  shares  delivered  to  him  by  the  executor  at  the  expiration  of 
a  year  from  the  death  of  the  testator,  and  this  right  had  no  reference 
to  any  particular  shares.  If  a  testator  making  such  a  gift  had  no  such 
shares  at  the  time  of  his  death,  or  if  he  had  them  and  for  any  reason 
the  executor  saw  fit  to  sell  them  soon  afterward,  in  the  settlement 
of  the  estate,  it  would  be  the  executor's  duty  to  procure  them  by  pur- 
chase before  the  expiration  of  a  year  from  the  time  of  the  testator's 
death  and  then  to  deliver  them  to  the  legatee.  Such  procurement  and 
delivery  would  satisfy  the  requirements  of  the  will.  Johnson  v.  Goss, 
128  Mass.  433-436. 

It  is  agreed  by  the  parties  that  at  the  time  of  the  execution  of  his 
will  the  testator  owned  375  shares  of  this  stock  and  continued  to  own 
them  to  the  time  of  his  death.  If  we  consider  that  part  of  the  lan- 
guage which  purports  only  to  give  the  stock,  disregarding  the  words 
"together  with,"  etc.,  we  think  it  plain  on  the  authorities  that  they 
did  not  create  a  specific  legacy.  The  number  given  was  only  a  part  of 
a  large  number  of  shares  that  the  testator  owned.  See  White  v.  Win- 
chester, 6  Pick.  48-52.  There  was  no  specification  of  what  part,  oth- 
erwise than  by  the  quantity.  There  is  no  designation,  such  as  the  use 
of  the  word  "my,"  to  confine  the  gift  to  any  particular  shares.    John- 


Ch.    4)  PAYMENT  OF  LEGACIES  AND    SHARES.  655 

son  V.  Goss,  128  Mass.  433-436 ;  Slade  v.  Talbot,  182  Mass.  256,  65 
N.  E.  374,  94  Am.  St.  Rep.  653;  Harvard  v.  Tufts,  151.  Mass.  76,  23 
N.  E.  1006,  7  L.  R.  A.  390;  Foote,  Appellant,  22  Pick.  299;  Tomlin- 
son  V.  Bury,  145  Mass.  346,  14  N.  E.  137,  1  Am.  St.  Rep.  464.  There 
is  no  bequest  to  the  same  legatee  of  both  stock  and  money,  such  as 
sometimes  has  been  much  relied  upon  as  showing  an  intention  to  make 
the  legacy  specific.  See  Metcalf  v.  Parish,  128  Mass.  370.  See,  upon 
the  general  subject,  Tifift  v.  Porter,  8  N.  Y.  516;  Sponsler's  Appeal, 
107  Pa.  95.  See  Snyder,  217  Pa.  71,  66  Atl.  157,  11  L.  R.  A.  (N.  S.) 
49,  118  Am.  St.  Rep.  900;  Dryden  v.  Owings,  49  Md.  356;  Davis  v. 
Cain,  36  N.  C.  304. 

If  this  is  to  be  treated  as  a  general  legacy,  the  question  arises  wheth- 
er the  words,  "together  with  all  the  rights  and  privileges  which  may 
now  or  hereafter  appertain  to  the  same,"  enlarge  the  gift.  We  have 
already  referred  to  the  rule  that  an  ordinary  legacy  is  not  payable  un- 
til the  expiration  of  a  year  from  the  time  of  the  testator's  death,  and 
if  the  legacy  is  of  money,  no  interest  is  payable  upon  it  for  that  time, 
even  if  it  is  invested  and  interest  upon  it  is  received.  Kent  v.  Dun- 
ham, 106  Mass.  586;  Ogden  v.  Pattee,  149  Mass.  82,  21  N.  E.  227,  14 
Am.  St.  Rep.  401;  Welch  v.  Adams,  152  Mass.  74-87,  25  N.  E.  34,  9 
L.  R.  A.  244.  In  the  case  of  a  mere  general  legacy  of  stocks,  since 
a  purchase  by  the  executor  and  delivery  to  the  legatee  of  the  requisite 
number  of  shares  at  the  end  of  the  year  would  satisfy  the  requirements 
of  the  will,  he  would. not  be  called  upon  to  procure  or  pay  over  divi- 
dends previously  declared  and  paid  to  the  owner.  In  reference  to 
such  a  general  legacy  the  words  above  quoted  from  the  will  would  add 
nothing.  They  would  be  nothing  more  than  a  tautological  and  un- 
necessary statement,  meaning  that  the  stock  should  be  perfect  in  its 
qualities  as  stock,  without  impairment  in  any  way,  and  conveyed  by  a 
perfect  title  to  give  the  legatee  all  the  advantages  that  could  belong 
to  any  owner.  The  words  are  more  pertinent  to  a  gift  of  a  specific 
legacy  than  to  a  gift  of  a  general  legacy,  although  a  gift  of  a  specific 
legacy  without  these  words  would  include  all  rights  and  privileges 
pertaining  to  the  specific  thing  given,  which  accrued  or  existed  after 
the  death  of  the  testator.  They  seem  to  point,  to  some  particular 
stock  in  the  mind  of  the  testator,  referred  to  by  the  words  "the  same." 

We  regard  the  question  whether  this  last  clause  is  sufficient  to 
change  what  would  otherwise  be  a  general  legacy  into  a  specific  leg- 
acy, as  the  only  difficult  question  in  the  case.  A  very  slight  indication 
of  an  intention  to  give  shares  then  in  his  ownership  is  enough  to  make 
the  legacy  specific  in  a  case  like  this.  On  the  whole,  we  think  the 
words  should  be  considered  as  referring  to  this  number  of  shares  of 
the  stock  then  owned  by  the  testator,  and  as  requiring  that  they  be  se.*: 
apart  and,  at  the  end  of  the  year,  turned  over  to  the  legatee  with  any 
increment  accruing  from  them  after  the  testator's  death.  All  the  lan- 
guage of  the  will  should  be  considered  together  and  given  effect. 


(556  PROBATE   AND    ADMINISTRATION.  (Part   3 

We  are  of  opinion  that  the  testator  intended  by  this  clause  to  give 
a  specific  legacy.  The  dividends  are  to  be  paid  to  James  P.  Pauld- 
ing.    So  ordered.' 


In  re  PEARCE. 

CRUTCHLEY  v.  WELLS. 

(Supreme  Court  of  Judicature,  Chancery  Division.    [1909]  1  Ch.  819.) 

Adjourned  summons. 

The  testator,  Sir  W.  G.  Pearce,  Bart,  bequeathed  to  his  wife  all 
his  furniture  and  effects,  horses,  carriages,  motor  cars,  yacht,  and 
jewelry,  and  gave  his  residuary  estate  to  the  plaintiffs,  his  executors 
and  trustees,  upon  trust  to  pay  the  income  thereof  to  his  wife  during 
her  life,  and  after  her  death  upon  trust,  in  the  events  which  happened, 
for  Trinity  College,  Cambridge,  absolutely. 

The  testator  died  on  November  2,  1907,  and  his  will  and  codicils 
were  proved  by  the  plaintiffs  on  December  18,  1907 ;  the  gross  value 
of  his  estate  being  sworn  at  the  sum  of  £469,764  12s.  2d. 

The  testator's  widow  died  on  December  23,  1907,  having  by  her  will 
appointed  the  defendants,  S.  R.  Wells  and  G.  G.  Vertue,  her  executors, 
who  proved  her  will  on  March  28,  1908. 

After  the  death  of  the  testator  the  plaintiffs  incurred  considerable 
expense  in  retaining  a  large  part  of  the  staff  of  men  and  women  serv- 
ants in  one  of  the  testator's  houses  in  order  to  maintain  and  keep  in 
good  order  the  furniture  and  effects  thereof,  and  to  look  after  the 

8  Compare  Snyder's  Estate,  217  Pa.  71,  66  Atl.  157,  11  U  R.  A.  (N.  S.)  49, 
118  Am.  St.  Rep.  900  (1907) ;  Jewell  v.  Appolonis  (N.  H.)  74  Atl.  250  (1909) ; 
Allen  V.  Allen  (N.  J.  Ch.)  74  Atl.  274  (1909).  In  the  latter  case  the  important 
question  was  whether  the  legacy  was  specific  or  demonstrative.  "A  specifie 
legacy,  if  of  stock,  carries  with  it  the  dividends  which  accrue  from  the  death 
of  the  testator,  while  a  demonstrative  legacy  does  not  carry  interest  from 
the  testator's  death."  Kindersley,  V.  C,  in  Mnllins  v.  Smith,  1  Drew.  &  S.  204 
(l.%0).  "In  deciding  whether  a  legacy  is  specific  or  general  [or  demonstrative], 
the  intention  of  the  testator  must  control,  as  it  must  the  decision  of  every 
other  question  involving  the  construction  of  wills.  There  is  no  technical,  ar- 
bitrary rule  requiring  the  use  of  particular  words  or  expressions  to  make  a 
bequest  specific.  Such  intention  may  be  manifested  either  by  clear  words,  or 
by  the  general  scope  and  texture  of  the  instrument;  but  in  the  latter  case,  in 
the  language  of  Lord  Eldon,  the  inference  should  rest  upon  a  strong,  solid, 
and  rational  Interpretation  of  the  will."  Van  Fleet,  V.  C,  in  Wyckoff  v.  Per- 
riue's  Ex'rs,  37  N.  J.  Eq.  118  (1883). 

"We  regard  it  as  a  well-settled  canon  of  interpretation  that  a  bequest  of 
a  stated  number  of  shares  of  stock  of  a  designated  corporation,  without  any 
reference  to  the  particular  shares  intended  to  be  bequeathed,  is  not  specific, 
but  general."  Savage,  J.,  in  Palmer  v.  Palmer's  Estate  (Me.)  75  Atl.  130,  132 
',19(19). 

On  whether  a  bequest  of  stocks,  bonds,  or  notes,  Is  general,  specific,  or 
demonstrative,  see  11  L.  R.  A.  (N.  S.)  49,  note. 

On  the  right  to  dividends  as  between  the  executor  and  the  specific  legatee 
of  stock,  see  45  L.  R.  A.  .393,  394,  note. 

On  the  necessity  and  effect  of  assent  by  the  executor  to  a  legacy,  set  50 
Am.  Dec.  4S.">,  note. 


Ch.    4)  PAYMENT   OF   LEGACIES   AND    SHARES.  657 

horses  and  carriages  specifically  bequeathed  by  the  testator  to  his 
wife,  and  in  paying  the  wages  and  expenses  of  the  captain  of  the 
yacht,  and  in  repairs  to  the  yacht. 

The  plaintiffs  assented  to  the  different  specific  bequests  at  various 
dates  between  March  23,  1908,  and  May  14,  1908. 

Subsequently  the  plaintiffs  took  out  this  summons  for  the  determma- 
tion  of  the  question  whether  the  estate  of  the  testator's  widow  should 
bear  any,  and  what,  part  of  the  costs  of  the  upkeep,  care,  and  preserva- 
tion of  the  furniture  and  effects,  horses  and  carriages,  and  yacht. 

Eve:,  J.,  stated  the  facts,  and  continued :  The  question  which  I  have 
to  decide  is  whether  the  moneys  which  have  been  expended  ought  to 
come  out  of  the  general  estate  or  ought  to  be  borne  by  the  specific 
legatee.  Now  it  seems  to  be  settled  law  that  when  an  executor  gives 
his  assent  to  a  specific  legacy  the  assent  relates  back  to  the  death  of 
the  testator,  and  the  specific  legatee  is  entitled  to  the  profits  accrued 
due  from  the  time  of  the  testator's  death.  That  being  so,  it  seems 
to  me  to  be  right  and  fair  that  the  specific. legatee  should  be  charged 
with  the  costs  of  the  upkeep,  care,  and  preservation  of  the  specific 
legacy  from  the  time  of  the  death  until  the  executor's  assent,  and  I 
shall  make  a  declaration  to  that  effect,  and  direct  an  inquiry  what  ex- 
penses were  properly  incurred  in  and  for  such  upkeep,  care,  and  pres- 
ervation. 


SECTION  2.— THE  ABATEMENT  OF  LEGACIES  AND 

DEVISES 


In  re  TUNNO. 

RAIKES  V.  RAIKES. 
(Supreme  Court  of  Judicature,  Chancery  Division,  1886.    45  Ch.  D.  66.) 

Caroline  Tunno  by  her  will  bequeathed  her  diamonds  to  her  trus- 
tees upon  trust  for  sale,  and  out  of  the  proceeds  to  lay  out  £600  in 
repairing  a  certain  parish  church,  and  to  lay  out  £700  in  the  building 
of  six  laborer's  cottages.  The  will  contained  a  residuary  bequest. 
The  diamonds  realized  a  little  over  £900.  The  gift  of  £700  for 
laborer's  cottages  having  been  declared  void,  the  residuary  legatee 
claimed  that  the  £600  legacy  must  abate  with  the  £700,  as  the  £900 
proceeds  would  not  pay  both. 

Chitty,  J.^  Then  a  further  point  is  raised,  which  is  this :  It  is 
said  on  behalf  of  the  residuary  legatee  that  as  the  gift  of  £700,  to  be 
paid  out  of  the  proceeds  of  sale  of  the  diamonds,  has  failed,  there  is 
a  lapse  for  the  benefit  of  the  residuary  legatee.     The  diamonds  did 

»  The  statement  of  facts  is  rewritten  and  abbreviated. 
Cost.  Wills — 42 


g58  PROBATE  AND    ADMINISTRATION.  (Part   3 

not  produce  £1,300,  but  only  about  £900,  and  the  argument  on  behalf 
of  the  residuary  legatee  is  that  this  £600  legacy  must  abate;  the  vicar 
and  churchwardens  thus  taking  six-thirteenths  of  the  £900  only.     It 
is  plain  that  as  between  the  legatee  of  the  £700,   had  that   legacy 
taken  effect,  and  the  legatees  of  this  £600,  there  must  have  been  an  ,_ 
abatement  in  the  proportions  named ;  but  it  does  not  follow  that  the 
residuary  legatee  can  therefore  claim  seven-thirteenths  of  the  £900. 
It  is  clear  that  if  a  specific  property  is  given  in  trust  for  A.  and  B.  as 
tenants  in  common  in  equal  shares,  and  B.  dies  in  the  testator's  life- 
time, A.  takes  only  one-half  of  the  property;  and  it  is  equally  clear 
that  the  same  result  follows  whatever  be  its  fractions  in  which  the 
property  is  divisible  among  the  specific  legatees.     It  is  clear,  too,  that 
if  property  be  given  upon  trust  for  sale,  with  a  direction  to  divide  the 
proceeds  into  aliquot  portions,  the  gift  intended  in  each  case  is  that  of 
a  specific  proportion  only  of  the  fund  which  the  testator  is  disposing 
of,  and  the  argument  on  behalf  of  the  residuary  legatee  proceeds  on 
the  assumption  that  on  the  true  construction  of  this  will  there  is  a 
gift  to  these  two  legatees  of  aliquot  portions  of  the  proceeds  of  sale  of 
the  diamonds.     It  is  plain  to  my  mind  that  that  is  not  the  true  inter- 
pretation of  his  gift.     It  is  not  as  if  the  testatrix  had  said :     "I  direct 
my  diamonds  to  be  sold  for  not  less  than  a  sum  of  £1,300,  and  I  there- 
out give  £600  to  the  church,  and  £700  to  some  one  else."    That  would 
have  amounted  to  a  gift  of  the  fund  in  specific  proportions;  but  she 
has  not  done  that. 

The  foundation  of  the  argument  for  the  residuary  legatee  is  the 
well-known  case  of  Page  v.  Leapingwell,  18  Ves.  463.  In  that  case 
the  sum  of  the  gift,  to  put  it  quite  shortly,  was:  I  distribute  £10,000 
in  aliquot  proportions  among  certain  named  legatees,  with  a  gift  over 
of  the  overplus  moneys  arising  from  the  sale,  upon  certain  trusts ;  and 
on  the  question  of  construction  as  to  the  meaning  of  the  word  "over- 
plus," Sir  William  Grant  held  that  it  was  equivalent,  in  that  case,  to  a 
sum  of  £2,200,  being  the  fractional  remainder  of  the  sum  of  £10,000 ; 
for  the  testator  in  that  case,  having  directed  a  sale  for  not  less  than 
£10,000,  Sir  William  Grant  held  that  there  was  in  substance  a  divi- 
sion of"  that  sum,  in  specific  or  aliquot  portions,  among  named  lega- 
tees, who  were  to  take  as  tenants  in  common  in  the  proportions 
named,  and  it  followed  that  if  any  one  of  them  died  in  the  lifetime 
of  the  testator,  or  if  for  any  other  reason  the  gifts  to  any  of  them 
failed,  such  event  did  not  increase  the  benefit  intended  to  be  given  to 
the  other  tenants  in  common.*  That  decision  has  no  application  to 
the  present  case.  To  my  mind,  it  is  not  open  to  argue  on  the  con- 
struction of  this  will,  that  there  is  a  gift  here  in  fractions  or  aliquot 
proportions,  of  the  proceeds  of  sale ;  it  contains  no  statement  of  the 
amount  of  the  fund  to  be  disposed  of,  nor  of  the  sum  for  which  the 
diamonds  are  to  be  sold,  nor  is  there,  in  terms,  any  gift  of  the  over- 

•  Compare  Van  Nest  v.  Van  Nest,  43  N.  J.  Eq.  126,  13  Atl.  179  (1887),  where 
R  trlft  of  "the  reniainins  .$SfX)"  of  .$1,300  was  held  not  to  be  residuary,  but 
to  aliate  eauallr  with  the  $500  ffiven  before. 


Ch.    4)  PAYMENT  OF  LEGACIES  AND    SHARES.  659 

plus,  in  the  event  of  the  jewels  realizing  more  than  £1,300.  Had  the 
diamonds  realized  £2,000,  no  disposition  is  made  in  the  will  of  the  sur- 
plus, except  in  so  far  as  such  surplus  would  be  swept  up  by  the  gen- 
eral residuary  gift.  It  is  clear  that,  if  these  jewels  had  sold  for  say 
£2,000,  the  legatees  of  this  £600  would  not  have  taken  any  more  than 
£600.     They  could  not  have  claimed  six-thirteenths  of  the  £2,000. 

In  the  result,  the  gift  here  is,  to  take  a  simple  illustration,  the  same 
as  if  a  testator  were  to  give  all  the  consols  he  was  possessed  of  at 
his  death  upon  trust  for  sale,  and  thereout  to  pay  a  legacy  of  £600 
to  A.,  and  another  legacy  of  £700  to  B.,  in  which  case,  there  being  no 
priority  between  the  two,  if  the  consols  turned  out  to  be  insufficient, 
abatement  would  be  necessary ;  but  in  any  case  the  charges  on  the  con- 
sols would  have  to  be  paid  before  the  residuary  legatee  could  come  in. 
The  argument  for  the  residuary  legatee  in  this  case  appears  to  me  to 
be  an  attempt  to  creep  into  the  shoes  of  the  legatee  of  the  £700  as  if 
that  legacy  had  taken  effect ;  but  this  legacy  has  failed,  and  the  resid- 
uary legatee  is  entitled  to  claim,  not  the  legacy  of  £700,  but  only  so 
much  of  the  proceeds  of  sale  of  the  diamonds  as  is  not  required  to 
satisfy  the  £600  legacy;  in  other  words,  the  residuary  legatee  can 
take  nothing  until  this  specific  charge  of  £600  has  been  satisfied. 

It  is  not  necessary  for  me  further  to  consider  the  authorities.  The 
result  is,  I  hold  that  the  contention  of  the  residuary  legatee  fails,  and 
that  this  £600  legacy  must  be  paid  in  full.^* 


Appeal  of  ARMSTRONG. 

(Supreme  Court  of  Pennsylvania,  1869.     63  Pa.  St.  312.) 

Sharswood,  J.^^  It  was  settled  in  England  by  Long  v.  Short, 
1  P.  Wms.  403,  that  specific  devises  of  land  and  specific  bequests  of 
personalty  must  abate  ratably  in  case  of  a  deficiency  of  assets  for  the 
payment  of  the  bond  debts  of  the  testator,  because  both  lands  and  chat- 
tels were  liable  in  law  for  those  debts,  and  it  was  equally  the  inten- 
tion of  the  testator  that  the  legatee  should  have  the  chattel,  and  the 
devisee  the  land.  1  Roper  on  Legacies,  254.  In  this  state,  where 
lands  have  always  been  assets  for  the  payment  of  debts  by  simple  con- 
tract as  well  as  by  specialty,  the  rule  is  general — that  wherever  there 

10  "I  come  to  the  conclusion  when  an  estate  has  been  so  depleted  by  the 
devastavit  of  an  executor  or  trustee  that  there  are  not  funds  enough  to 
pay  the  specific  legatees  in  full,  whatever  there  is  must  be  devoted  to  the  pay- 
ment of  such  legatees  to  the  exclusion  of  the  residuary  legatees.  There  is 
no  residuary  estate  to  be  distributed."  Clarke,  J.,  in  Farmers'  Loan  &  Trust 
Co.  V.  McCarthy,  128  App.  Div.  621,  625,  113  N.  Y.  Supp.  207.  209  (1908).  See. 
also,  Buffalo  Co.  v.  Leonard,  154  N.  Y.  141,  47  N.  E.  966  (1897),  where  on  a 
flevastavit  by  the  executor  the  residuary  legatee  was  made  to  refund,  so  that 
pecuniary  legatees  might  be  paid.    But  see  note  to  Anonymous,  post,  pp.  682,  683. 

11  The  statement  of  facts  is  omitted,  and  part  only  of  the  opinion  is  given. 


^gO  PROBATE  AND    ADMINISTRATION.  (Part   3 

is  a  deficiency  of  assets  to  pay  both  debts  and  legacies,  specific  devisees 
and  specific  legatees  shall  contribute  proportionably.  What  is  termed 
a  demonstrative  legacy,  partakes,  in  this  respect,  of  the  privilege  oi  a. 
specific  legacy.  A  demonstrative  legacy  is  the  bequest  of  a  certam 
sum  of  money,  with  a  direction  that  it  shall  be  paid  out  of  a  particu- 
lar fund.  It  differs  from  a  specific  legacy  in  this  respect:  That  if 
the  fund  out  of  which  it  is  payable  fails  for  any  cause,  it  is  never- 
theless entitled  to  come  on  the  estate  as  a  general  legacy.  And  it 
diflfers  from  a  general  legacy  in  this :  That  it  does  not  abate  in  that 
class,  but  in  the  class  of  specific  legacies.  1  Roper  on  Legacies, 
153.  It  is  settled  by  this  court  that,  in  the  marshaling  of  assets  for 
the  payment  of  the  debts  of  a  testator,  specific  devises  of  land  abate 
proportionably  with  specific  and  demonstrative  legacies.  Barklay's 
Estate,  10  Pa.  387;  Hallowell's  Estate,  23  Pa.  228. 

The  legacy  to  Mrs.  Rea  falls  clearly  within  the  class  of  demonstra- 
tive legacies.  By  the  will  the  sum  of  $1,200  was  to  be  paid  to  her 
out  of  the  proceeds  of  the  mill  property,  and  by  the  codicil  she  was 
to  have  in  addition,  out  of  the  proceeds  of  the  sale  of  the  mill,  bank 
stock,  and  other  personal  property,  a  sum  sufficient  to  make  her  equal 
to  her  sister  Elizabeth,  in  the  amount  which  the  testator  had  loaned 
and  paid  to  her  husband.  There  is  certainly,  nothing  in  the  will  to 
evince  a  different  intention.  On  the  contrary,  the  testator  carefully 
provides  that  if  the  sale  of  his  mill  property  should  not  produce  suffi- 
cient to  pay  the  sums  bequeathed  to  his  daughters  respectively,  they 
were  to  be  paid  out  of  his  estate  in  general ;  which  strongly  implies  a 
preference  and  priority  to  them,  and  that  their  legacies  were  to  be  paid 
to  them  at  all  events.  Duncan  v.  Alt,  3  Pen.  &  W.  382.  To  apply 
any  less  favorable  rule  to  Mrs.  Rea  than  that  which  was  adopted  in 
this  case  would  most  clearly  disappoint  the  intention  of  the  testator, 
"and  cut  up  his  plan  of  distribution  by  the  roots."  While  the  other 
devisees  and  legatee  would  receive  their  bequests  in  full,  the  entire 
loss  would  fall  on  ]\Irs.  Rea  as  effectually  as  if  she  had  been  a  mere 
residuary  legatee  and  postponed  to  them  all.     *     *     * 

Decree  [confirming  the  auditor's  report  deciding  that  Mrs.  Rea's 
legacy  abated  proportionately  with  specific  devises  and  bequests]  af- 
firmed, and  appeal  dismissed,  at  the  costs  of  the  appellants.^* 

12  In  Kelly  v.  Richardson,  100  Ala.  584,  599,  13  South.  785,  791  (1893),  it  Is 
Bald:  "It  is  the  policy  of  our  laws  that  both  real  aud  personal  property  are 
equally  liable  for  the  debts  of  decedent,  and  that  realty  devised  aud  per- 
sonalty bequeathed  shall,  where  the  devise  and  legacy  are  of  the  same  char- 
acter, abate  ratably  when  there  is  a  failure  of  assets  undisposed  of  by  the 
will  to  pay  debts.  It  is  In  keeping  with  this  policy  that  the  rule  by  which 
spefific  legacies  and  specific  devises  are  abated  ratably  by  the  necessities  of 
contributions  to  the  debts  of  the  estate  has  come  to  be  established.  It  follows 
logically  from  this  policy  and  this  rule  in  respect  to  specific  dispositions  of 
realty  and  personalty  respectively  that  general  devises  shall  contribute  ratably 
wi*h  general  legacies  to  debts  and  expenses  of  administration,  and  we  so 
bold"  (McClellau,  J.).     See.  also,   Estate  of  Woodworth,  31  Cal.  595  (1867). 


Ch.    4)  PAYMENT  OF   LEGACIES  AND    SHARES.  661 

GELBACH  V.  SHIVELY. 

(Court  of  Appeals  of  Maryland,  1887.    67  Md.  498,  10  Atl.  247.) 

Alvey,  C.  J.  This  case  was  brought  to  obtain  a  judicial  construc- 
tion of  the  will  of  George  Gelbach,  Jr.,  deceased,  and  to  have  deter- 
mined the  rights  of  certain  parties  thereunder.  George  Gelbach,  the 
testator,  died  in  Feb.  1880,  leaving  a  widow  and  two  children,  and  four 
grandchildren,  all  provided  for  in  his  will,  which  was  duly  admitted 
to  probate.  The  father  of  George  Gelbach,  Jr.,  had  died  in  1879,  leav- 
ing three  children,  including  George,  as  his  only  heirs  and  distributees, 
and  he  left  a  small  estate,  consisting  of  real  and  personal  property  in 
Pennsylvania,  where  he  died,  and  some  real  property  in  the  City  of 
Baltimore. 

George  Gelbach,  Jr.,  by  his  will,  after  giving  some  few  legacies, 
made  the  two  following  bequests : 

"Item.  I  give  and  bequeath  out  of  the  portion  or  share  of  my  fa- 
ther's estate  that  may  come  to  me,  one  thousand  dollars  to  my  brother, 
Joseph  Gelbach." 

"Item.  I  give  and  bequeath  (out  of  the  share  or  portion  of  my 
father's  estate  that  may  come  to  me)  one  thousand  dollars  to  my  sis- 
ter, Elizabeth  Shively." 

He  then  devised  and  bequeathed  all  the  rest  and  remainder  of  his 
estate,  real  and  personal,  to  be  divided  into  three  equal  parts,  one  of 

In  some  .inrisdictions  residuary  devises  are  treated  as  specific  devises.  See 
Lancefield  v.  Iggulden,  post.  p.  (5G9. 

While  by  the  general  rule  specific  devises  and  specific  legacies  must  abate 
pro  rata,  a  few  .lurisdictions  make  specific  legacies  abate  before  specific  de- 
vises. See  Gordon  v.  James,  86  Miss.  719,  755,  39  South  18,  25,  1  L..  R.  A.  (N. 
S.)  461  (1905),  where  the  court  says:  "The  true  rule  is  that  upon  an  insuf- 
ficiency of  the  personal  estate,  which  is  primarily  liable  to  the  debts,  the  spe- 
cific bequests  must  abate  proportionately,  even  to  the  extent  of  complete 
destruction,  before  the  devisees,  to  whom  lands  have  been  specifically  devised, 
can  be  called  upon  to  contribute."  The  same  reasoning  would  require  in  such 
states  that  residuary  personalty  be  taken  before  residuary  realty,  even  thongh 
the  gift  of  the  residue  of  realty  be  not  regarded  as  a  specific  devise.  See 
Hamlin  v.  Mansfield.  88  Me.  131,  33  Atl.  788  (1895).  Compare  McGlaughlin  v. 
McGlaughlin,  24  Pa.  20  (1854).  That  general  legacies  must  abate  or  be  post- 
poned until  payment  in  full  is  made  of  demonstrative  legacies,  see  Baptist 
Female  University  v.  Borden.  132  N.  C.  476,  44  S.  E.  47,  1007  (1903) ;  Gel- 
hach  V.  Shively,  next  post.  On  order  of  abatement  as  between  demonstrative 
legacies  and  specific  legacies  and  devises,  see  4  L.  R.  A.  (N.  S.)  922,  note.  On 
demonstrative  legacies,  see  4  Prob.  Rep.  Ann.  687,  note. 

The  English  rule  is  stated  by  Jarman  as  follows:  "The  order  of  the  applica- 
tion of  the  several  funds  liable  to  the  payment  of  debts,  then,  is  as  follows: 
(1)  The  general  personal  estate  not  expressly  or  by  implication  exempted.  (2) 
Lands  expressly  devised  to  pay  debts,  whether  the  inheritance  or  a  term 
carved  out  of  it  be  so  limited.  (3)  Estates  which  descend  to  the  heir,  whether 
acquired  before  or  after  the  making  of  the  will.  (4)  General  pecuniary  leg- 
acies pro  rata.  (5)  Real  or  personal  property  devised  or  bequeathed,  either 
to  the  heir  or  a  stranger,  charged  with  debts,  and  disposed  of,  subject  to  such 
charge.  (6)  Specific  legacies  and  real  estate  devised,  whether  in  terms  spe- 
cific or  residuary,  are  liable  to  contribute  pro  rata.  (7)  Real  or  personal  prop- 
erty over  which  the  testator  has  a  general  power  of  appointment,  and  which 


662  PROBATE  AND    ADMINISTRATION.  (Part   3 

which  parts  he  gave  to  his  wife  absolutely,  and  the  other  two-thirds  he 
gave  to  his  two  children  in  equal  parts,  in  trust  for  life,  with  remain- 
der to  their  children. 

The  estate  of  the  father  of  the  testator  was  settled  after  the  death  of 
George,  and  the  proceeds  of  that  estate,  both  real  and  personal,  (with 
the  exception  of  some  railroad  stock,  distributed  in  the  lifetime  of 
George,)  were  distributed,  and  the  portion  thereof  distributed  as 
George's  share  was  paid  over  in  equal  parts  to  Joseph  Gelbach  and 
Elizabeth  Shively,  on  account  of  the  legacies  to  them  under  their 
brother's  will.  The  amounts  received,  however,  from  the  estate  of  the 
father,  was  not  equal  to  the  amount  mentioned  in  the  bequests  to  them 
by  the  brother ;  and  they  now  claim  that  the  balance  of  such  amounts 
shall  be  made  up  from  the  general  personal  estate  of  George,  the  tes- 
tator. And  whether  such  claim  can  be  maintained,  depends  upon  the 
nature  and  distinctive  character  of  the  bequests — whether  they  are  so 
far  of  a  specific  character  as  to  be  exclusively  dependent  for  their  pay- 
ment upon  the  sufficiency  of  the  estate  or  fund  referred  to  as  the 
source  of  payment,  and  out  of  which  the  amounts  were  given,  or 
whether  they  are  of  the  character  denominated  demonstrative  legacies. 

Ordinarily,  a  legacy  of  a  sum  of  money  is  a  general  legacy;  but 
where  a  particular  sum  is  given,  with  reference  to  a  particular  fund 
for  payment,  such  legacy  is  denominated  in  the  law  a  demonstrative 

he  has  appointed  by  his  will."  2  Jarman  on  Wills  (6th  Ed.)  1430-1432.  See 
Manning  v.  Spoouer,  3  Ves.  Jr.  114  (1796). 

But  in  Maitland's  Equity  and  the  Forms  of  Action  at  Common  Law.  208, 
Jarman's  No.  (5)  is  placed  before  his  No.  (4).  Maitland  says:  "Doubt  was  oc- 
casioned by  the  case  of  In  re  Bate,  43  Ch.  D.  600,  as  to  which  ought  to  go  first, 
realty  charged  with  the  payment  of  debts  or  a  pecuniary  legacy.  Kay,  J.,  held 
that  the  pecuniary  legacy  must  go  first,  but,  semble,  wrongly ;  and  in  the  later 
cases  of  In  re  Salt,  [1895]  2  Ch.  203,  and  In  re  Roberts,  [1902]  2  Ch.  834,  it 
was  decided  that  where  a  will  contains  a  general  direction  for  payment  of 
debts  the  pecuniary  legatees  are  entitled  to  have  the  assets  marshaled  against 
specific  devisees  of  the  real  estate.  Then  note  that  a  lapsed  share  of  residue 
is  not  applicable  before  other  shares.  I  give  all  my  personalty  to  A.,  B.  and 
C.  in  equal  shares.  (A.,  B.  and  C.  are  not  descendants  of  mine.  Those  of  you 
who  have  read  the  Wills  Act  [1837,  §  33]  will  know  why  I  make  this  remark.) 
A.  dies  during  my  lifetime,  so  his  share  lapses  to  my  next  of  kin.  The  three 
shares  must  contribute  equally  to  the  payment  of  my  debts.  You  are  not  to 
throw  the  debts  on  to  the  lapsed  share  for  the  benefit  of  the  other  shares. 
Threthewy  v.  Helyar,  4  Ch.  D.  53." 

In  French  v.  Vradenburg's  Ex'rs,  105  Va.  16,  52  S.  B.  695,  3  L.  R.  A.  (N,  S.) 
898,  11.")  Am.  St.  Rep.  838  (1900),  also,  .Jarman's  classes  (4)  and  (5)  are  transpos- 
ed. Then  follows:  "(0)  Specific  legacies;  (7)  real  estate  devised  by  the  will." 
In  that  state,  "when  legacies  are  to  be  used  to  pay  debts,  the  first  liable  is  the 
residuary  legacy  (2  Lomax  on  Executors,  126),  and  the  next  are  the  general 
pecuniary  legacies,  then  the  specific  legacies,  and  lastly  the  real  estate  devised 
by  the  will."  Fauntloroy.  J.,  in  Edmunds'  Adm'r  v.  Scott,  78  Va.  720,  729 
(1S84).  In  In  re  Martin,  25  R.  I.  1,  54  Atl.  589  (1903),  the  court  sets  apart: 
(1)  The  general  or  residuary  estate ;  (2)  general  legacies  and  general  devises ; 
(3)  specific  legacies  and  specific  devises  not  subjected  to  a  testamentary  charge 
of  debts. 

On  the  personal  liability  of  devisees  for  charges  imposed  by  the  will,  see 
129  Am.  St.  Rep.  1056,  note.  On  when  legacies  are  charged  on  land,  see  12 
Vrol).  Rep.  Ann.  .'',09,  note,  and  Fries  v.  Osborn,  190  N.  Y.  35,  82  N.  E.  716,  19 
L.  R,  A.  (N.   S.)  457  (1907). 


Qh_    4)  PAYMENT   OF   LEGACIES  AND    SHABES.  663 

legacy;  and  such  legacy  is  so  far  general,  and  differs  so  materially  in 
effect  from  one  properly  specific,  that  if  the  fund  be  called  m  or  fail, 
or  prove  to  be  insufficient,  the  legatee  will  not  be  deprived  of  his  leg- 
acy, but  he  will  be  permitted  to  receive  it  out  of  the  general  assets  of 
the 'estate.  Dugan  v.  Hollins,  11  Md.  77.  But  such  legacy  is  so  far 
specific  that  it  will  not  be  liable  to  abate  with  general  legacies,  upon  a 
deficiency  of  assets,  except  to  the  extent  that  it  is  to  be  treated  as  a 
general  legacy,  afer  the  application  of  the  fund  designated  for  its  pay- 
ment.   MulUns  V.  Smith,  1  Drew.  &  Sm.  204;  2  Wm's  Ex'rs,  995. 

The  authorities  seem  to  be  clear  in  holding  that  whether  a  legacy  is 
to  be  treated  as  a  demonstrative  legacy,  or  as  one  dependent  exclu- 
sively upon  a  particular  fund  for  payment,  is  a  question  of  construc- 
tion, to  be  determined  according  to  what  may  appear  to  have  been  the 
general  intention  of  the  testator.  Creed  v.  Creed,  11  CI.  &  Finl.  5J)9. 
For  although  the  personal  estate  of  the  testator  is  the  primary  fund 
for  the  payment  of  legacies  generally,  particular  legacies  may  be  so 
provided  for  as  to  be  charged  upon  a  particular  fund  or  estate  exclu- 
sively. As  was  said  by  the  Lord  Chancellor,  in  Saville  v.  Blacket,  1  P. 
Wms.  779,  "it  is  possible  for  a  legacy  to  be  charged  in  such  manner 
upon  a  certain  fund,  as  that  upon  its  failing,  the  legacy  shall  be  lost." 
Here,  the  bequest  is  of  a  $1,000  out  of  the  testator's  share  or  portion 
of  his  father's  estate.  Does  this  amount  to  anything  more  than  a  tes- 
tamentary assignment  or,  relinquishment  of  the  testator's  interest  in  his 
father's  estate,  to  the  extent  of  the  legacies  mentioned,  in  favor  of  his 
brother  and  sister,  if  his  interest  should  prove  to  be  of  that  amount? 
The  language  of  the  bequests  would  seem  clearly  to  negative  the  idea 
that  the  testator  intended  that  any  portion  of  these  legacies  should  be 
paid  out  of  his  general  personal  estate  (apart  from  that  acquired  from 
his  father)  ;  and  he  manifestly  supposed  that  his  share  in  his  father's 
estate  would  be  sufficient  to  pay  the  amounts  mentioned  by  him.  The 
amount  necessary  to  pay  the  balance  of  these  legacies,  if  they  are  to 
be  paid  out  of  the  general  personal  estate  of  the  testator,  would  have 
to  be  raised  out  of  the  portions  given  to  the  testator's  wife  and  chil- 
dren ;  and  we  are  clearly  of  opinion  that  such  result  would  contravene 
the  intention  of  the  testator,  as  manifested  in  the  general  scheme  of 
the  will,  and  by  the  terms  of  the  bequests  themselves. 

It  is  certainly  true,  as  a  general  proposition,  as  was  said  by  the  Vice 
Chancellor  in  Dicken  v.  Edwards,  4  Hare,  276,  that  where  a  testator 
bequeaths  a  sum  of  money  in  such  a  manner  as  to  show  a  separate 
and  independent  intention  that  the  money  shall  be  paid  to  the  legatee 
at  all  events,  that  intention  will  not  be  held  to  be  controlled  merely  by 
a  direction  in  the  will  that  the  money  is  to  be  raised  in  a  particular 
way,  or  out  of  a  particular  fund.  But  where  the  legacy  is  so  specific 
and  so  co.inected  with  the  fund  appointed  for  its  payment  as  to  give 
rise  to  the  inference  that  the  legacy  would  not  have  been  given  but 
for  the  fund  as  a  means  of  payment,  there  the  legacy  will  fail  with 
the  failure  of  the  fund.    Mann  v.  Copland,  2  Madd.  223,  226;  Dicken 


664  PROBATE  AND    ADMINISTRATION.  (Part   3 

« 

V.  Edwards,  4  Hare,  276 ;  Creed  v.  Creed,  11  CI  &  Fin.  509.  vSee, 
also,  Hancox  v.  Abbey,  11  Ves.  179. 

In  our  opinion  it  is  clear,  that  the  legacies  given  to  the  brother  and 
sister  are  not  general  legacies  in  the  sense  that  they  are,  to  any  extent, 
payable  out  of  the  general  personal  estate  of  the  testator,  apart  from 
the  fund  out  of  which  they  were  made  payable;  and  that,  to  the  ex- 
tent of  the  deficiency  of  that  fund  to  pay  such  legacies  in  full,  they 
must  fail. 

It  follows  that  the  decree  of  the  38th  of  March,  1887,  requiring  the 
balance  supposed  to  be  due  on  the  two  legacies  mentioned  to  be  paid 
out  of  the  general  assets  of  the  estate,  must  be  reversed,  and  the  cause 
be  remanded. 

Decree  reversed,  and  cause  remanded.^* 


HAYS  V.  JACKSON. 
(Supreme  Judicial  Court  of  Massachusetts,  1809.    6  Mass.  149.) 

The  petitioners  alleged,  and  proved  by  the  requisite  documents  from 
the  probate  office,  that  the  personal  estate  of  the  testator  was  insuffi- 
cient, by  the  sum  of  $66,000,  for  the  payment  of  his  just  debts  and 
legacies,  and  thereupon  prayed  that  they  might  be  licensed  to  convey 
so  much  of  the  real  estate,  of  which  he  died  seised,  as  should  be  suffi- 
•:ient  to  pay  these  debts  and  legacies,  with  the  charges  of  sale. 

Upon  notice  ordered,  the  heirs  at  law  appeared,  and  sundry  ques- 
tions arose,  all  of  which  are  discussed  in  the  following  opinion  of  the 
court,  which  was  delivered  by 

Parsons,  C.  J.  Henry  Jackson  made  his  last  will  on  the  13th  of 
January,  1805,  in  which  he  makes  the  following  dispositions  of  his 
estate : 

First.  After  all  his  just  debts  and  funeral  charges  are  paid,  he  gives 
to  such  of  his  nephews  and  nieces  as  may  survive  him,  fifty  dollars 
each.  Also  he  gives  to  his  sister  Susanna  Gray,  in  fee,  certain  specific 
real  estate,  on  condition  that  she  does  not  demand  against  his  estate 
her  portion  of  her  father's  estate  remaining  in  his  hands ;  and  his  ex- 
ecutors are  to  hold  the  real  estate,  thus  devised  her,  upon  the  same 
trusts  as  he  held  her  said  portion. 

Also,  he  gives  to  Mrs.  Hepzibah  C.  Swan,  in  fee,  all  the  remaining 
part  of  his  estate,  real  and  personal,  of  which  he  might  die  seised, 
or  which  might  afterwards  descend  to  him,  by  gift,  grant,  as  heir  at 
law,  or  otherwise,  to  be  held  in  trust  by  his  executors,  for  her  sole  use 
and  disposal. 

i«  See  Byrne  v.  Hume,  84  Mich.  185,  47  N.  W.  679  (1«90);  Id.,  86  Mich.  546, 
49  N.  W.  576  (1891). 

On  the  order  of  ahatenient  to  pay  debts  as  between  demonstrative  legacies 
and  specific  legacies  or  devises,  see  4  L.  R,  A.  (N.  S.)  922,  note. 


Ch.    4)  PAYMENT  OF   LEGACIES  AND    SHARES.  665 

And  he  appoints  Jiidah  Hays  and  Elisha  Sigourney,  his  executors. 
Mrs.   Swan,  the  residuary  legatee,  and  also  the  heirs  at  law,  are 

before  us. 

The  testator  was  seised  of  other  real  estate  than  that  specifically 
devised  to  Mrs.  Gray,  when  he  made  his  will;  and  he  afterwards 
acquired  other  real  estate,  which,  on  his  death,  without  a  republication 
of  his  will,  descended  to  his  heirs. 

It  appears  that  the  personal  estate,  left  by  the  deceased,  is  insuffi- 
cient to  pay  all  his  debts.  The  heirs  contend  that  the  lands,  which 
would  pass  by  the  residuary  devise  to  Mrs.  Swan,  shall  first  be  applied 
to  the  payment  of  the  debts,  before  the  descended  lands  can  be  called 
for.  On  the  other  side,  Mrs.  Swan  and  the  executors,  who  are  her 
trustees,  insist  that  the  descended  lands  are  first  to  be  appropriated 
to  the  payment  of  the  debts. 

Whether  we  are  authorized,  on  this  petition,  to  marshal  the  assets, 
and  if  we  are,  in  what  manner  they  are  to  be  marshaled,  are  the  ques- 
tions before  the  court. 

The  case  may  at  first  be  considered  as  at  common  law,  and  accord- 
ing to   the   equitable   rules   established   for  marshaling  assets,   where 

there  is  a  will. 

At  common  law,  the  lands  of  a  testator  are  not  assets,  in  the  hands 
of  the  heirs,  for  the  payment  of  any  but  specialty  debts,  where  the 
heir  is  expressly  bound  by  the  contract.  And  his  lands  are  not  bound 
for  the  payment  of  any  of  his  debts  in  the  hands  of  a  devisee,  unless 
charged  by  the  testator,  either  generally  or  specially,  in  his  will.  To 
prevent  the  injustice  of  the  testator  in  devising  his  lands  without 
charging  them  with  the  payment  of  his  debts,  the  statute  of  3  &  4 
W.  &  M.  c.  14,  was  passed,  by  which  the  lands  in  the  hands  of  a 
devisee  are  made  assets  for  the  payment  of  debts  due  on  specialties. 
Since  that  statute,  all  the  lands  of  the  testator,  whether  they  descend 
or  are  devised,  are  charged  by  law  with  the  payment  of  creditors  by 
specialty,  who  may  also  resort  to  the  personal  estate.  But  creditors 
by  simple  contract  can  avail  themselves  only  of  the  personal  estate, 
and  of  such  of  the  lands  as  are  charged  in  the  will  with  the  payment 
of  debts;  unless  when  they  take  the  place  of  creditors  by  specialty, 
who  have  been  paid  out  of  the  personal  estate.  These  rights  of  the 
creditors  remain  uncontrolled  by  any  provisions  which  a  testator  can 

make. 

But  as  between  legatees  and  devisees  who  claim  under  the  will,  and 
the  heirs  who  can  take  only  what  the  testator  has  not  given  away,  he 
may  regulate  the  funds,  out  of  which  his  debts  shall  be  paid,  by  which 
regulations  they  will  be  bound. 

And  the  general  rule  in  equity  for  marshaling  assets  is  thus  settled : 
(1)  The  personal  estate,  excepting  specific  bequests,  or  such  of  it  as 
is  exempted  from  the  payment  of  debts.  (2)  The  real  estate  which 
is  appropriated  in  the  will  as  a  fund  for  the  payment.  (3)  The  de- 
scended estate,  whether  the  testator  was  seised  of  it  when  the  will  was 


666  PROBATE  AND    ADMINISTRATION.  (Part    ^ 

made,  or  it  was  afterwards  acquired.  (4)  The  rents  and  profits  of  it, 
received  by  tlie  heir  after  the  testator's  death.  And  (5)  the  lands 
specifically  'devised,  although  they  may  be  generally  charged  with  the 
payment  of  the  debts,  but  not  specially  appropriated  for  that  purpose. 
And  this  rule  is  executed  by  a  decree  in  chancery,  according  to  the 
rights  of  the  parties  respectively  interested. 

The  laws  of  this  commonwealth,  applicable  to  this  subject,  may 
next  be  considered.  And  here  all  the  personal  estate  of  the  testator, 
and  all  the  real  estate,  of  which  he  died  seised,  whether  devised  or 
not,  are  assets  for  the  payment  of  all  his  debts,  whether  due  by  simple 
contract  or  by  specialty.  Also  by  St.  1783,  c.  24,  §  10,  all  estate,  real 
or  personal,  undevised  in  any  will,  shall  be  distributed  as  if  it  were 
intestate,  and  the  executor  shall  administer  upon  it  as  such. 

A  question  has  been  made,  whether  the  executor  must  take  out  ad- 
ministration on  such  undevised  estate,  or  whether  he  shall  adminis- 
ter it,  ex  officio,  as  executor.  The  usage  has  been  to  administer  it 
without  a  letter  of  administration ;  and  we  are  satisfied  that  this  usage 
is  correct.  There  can  be  no  benefit  to  any  person,  from  having  two 
accounts  opened  by  the  executor  in  the  probate  office ;  and  the  natural 
construction  of  this  section  supports  the  usage.  For  the  executor,  by 
the  probate  of  the  will,  has  the  administration  of  the  testate  estate, 
according  to  the  will,  and  on  undevised  estate  he  is  also  directed  to  ad- 
minister agreeably  to  the  provisions  respecting  intestate  estate. 

According  to  the  strict  rules  of  law,  there  can  be  no  undevised  per- 
sonal estate  in  a  will,  where  an  executor  is  appointed;  for  he  has  all 
the  personal  estate,  whether  acquired  before  or  after  the  will,  in  trust, 
first,  to  pay  the  debts,  and. then  the  legacies,  and  if  any  remained,  it 
was  his  own,  unless  the  testator,  by  his  provision  for  the  executor, 
had  excluded  him  from  it,  in  which  case  he  was  trustee  of  the  re- 
mainder for  the  next  of  kin. 

As  questions  frequently  arose,  whether  the  executor  was  excluded 
from  the  residue  or  not,  the  section  of  the  statute  above  cited  removed 
all  doubt;  and  the  executor  is  now,  in  all  cases,  trustee  of  the  undis- 
posed residue  for  the  next  of  kin. 

As  to  the  distribution  of  undevised  lands,  this  section  is  merely 
affirmative  of  the  common  law,  which  gives  to  the  heir  all  undevised 
estate.  But  by  the  obligation  imposed  on  the  executor  to  administer 
it  as  intestate  estate,  it  becomes  assets  in  his  hands  for  the  payment  of 
the  testator's  debts ;  and  it  may  be  sold  by  the  executor,  on  license  for 
that  purpose,  or  a  creditor  may  take  it  in  execution. 

There  is  another  provision,  applicable  to  this  subject,  in  the  eight- 
eenth section  of  this  statute,  where  it  is  enacted,  that  whenever  a-  tes- 
tator in  his  will  shall  give  any  chattels  or  real  estate  to  any  person 
or  persons,  and  the  same  shall  be  applied  to  satisfy  the  debts  of  the 
testator,  all  the  other  legatees,  devisees,  or  heirs,  shall  refund  their 
proportionable  part  of  such  loss,  and  contribution  may  be  compelled 
by  suit. 


Ch.    4)  PAYMENT  OF  LEGACIES  AND    SHARES.  667 

From  this  view  of  our  statute  provisions,  it  is  manifest  that  a  tes- 
tator cannot,  by  any  dispositions  in  his  will,  affect  the  rights  of  cred- 
itors, who  may,  if  their  debts  are  not  discharged,  enforce  satisfaction 
by  the  levy  of  their  executions  on  any  estate,  which  was  the  testator's 
at  his  decease;  the  whole  of  it  being  assets  in  the  hands  of  the  ex- 
ecutor. But  it  is  also  manifest  that  the  testator  may  bind,  by  his  dis- 
positions, his  legatees,  devisees,  and  heirs. 

Hence  result  the  right  and  duty  of  the  court,  in  the  due  exercise  of 
its  jurisdiction,  so  to  marshal  the  assets,  that  as  little  interruption  be 
given  to  the  interests  of  the  claimants  under  the  will,  and  of  the  heirs, 
as  may  consist  with  the  more  perfect  rights  of  creditors.  This  can  be 
done  only  by  a  designation  in  the  license  of  the  estate,  which  the 
executor  may  sell  for  the  payment  of  debts.  And  when  the  testator, 
or  the  law,  has  appropriated  an  adequate  fund  for  the  payment  of 
the  debts,  it  would  be  unreasonable  for  the  court  to  permit  that  fund 
to  lie  by,  and  to  license  an  executor  to  sell  a  specific  devise,  and  thus 
drive  the  specific  devisee  to  his  action  at  law,  for  relief  out  of  the 
appropriate  fund. 

In  what  manner  the  assets  are  in  this  case  to  be  marshaled,  is  the 
next  question.  And  in  our  opinion,  the  rule  established  in  equity,  in 
cases  where  all  the  debts  are  due  by  specialty,  is  applicable  in  this 
case,  except  as  it  relates  to  the  rents  and  profits  of  the  descended  es- 
tate, received  after  the  testator's  death,  which  we  cannot  come  at. 
For  in  those  cases,  the  whole  estate,  personal  and  real,  as  well  the  de- 
vised as  the  descended  lands,  are  assets  for  the  payment  of  all  the 
debts.  So  here  the  whole  estate  of  Jackson,  the  testator,  including 
the  descended  real  estate,  is  assets  for  the  payment  of  all  his  debts,  in 
the  hands  of  his  executors.  And  in  both  cases  the  charge  on  the  es- 
tate is  by  operation  of  law. 

In  this  will  there  is  no  specific  bequest  of  any  chattel,  and  no  exemp- 
tion of  any  part  of  the  personal  estate  from  the  payment  of  debts. 
Therefore  the  whole  of  the  personal  estate,  after  the  payment  of  the 
expenses  of  the  last  sickness,  funeral  charges,  and  of  the  debts  due  to 
the  government  (if  any),  is  first  to  be  applied  to  discharge  the  debts. 
It  is  also  very  clear,  that  the  devise  of  lands  to  Susanna  Gray  is  a  spe- 
cific devise,  not  liable,  by  the  terms  of  it,  to  any  deduction.  The  de- 
scended estate  must  then  be  applied  to  the  payment  of  the  debts,  before 
the  specific  devise  can  be  resorted  to.  And  the  same  rule  must  apply 
to  the  lands  which  Mrs.  Swan  can  claim  as  residuary  legatee,  if  the 
devise  of  those  lands  can  be  considered  as  specific  within  the  intention 
of  the  rule. 

Jackson  first  provides  that  his  debts  and  funeral  charges  be  paid. 
He  next  bequeaths  legacies  to  his  nephews  and  nieces,  and  makes  a 
specific  devise  to  his  sister,  Susanna  Gray.  Then  he  gives  to  Mrs. 
S\^an,  in  fee,  all  the  remaining  part  of  his  estate,  real  and  personal ; 
the  just  construction  of  which  is,  "when  my  debts  and  fimeral  charges, 
and  the  legacies,  are  paid,  and  the  specific  devise  to  my  sister  is  de- 


668  PROBATE  AND    ADMINISTRATION.  (Part   3 

ducted,  then  what  remains,  whether  real  or  personal,  I  devise  in  fee 
to  Mrs.  Swan."    If  nothing  should  remain,  then  nothing  is  devised  to 

her. 

We  cannot  therefore  consider  this  devise  of  the  remainder  as  spe- 
cific. It  is  rather  creating  a  fund  for  the  payment  of  the  debts  and 
legacies,  with  a  devise  of  what  remains,  if  any,  to  the  residuary  dev- 
isee. If,  after  the  personal  estate  was  exhausted  by  the  debts,  the  un- 
satisfied creditors  should  levy  their  executi^s  on  all  the  devised  lands, 
excepting  those  specifically  devised  to  Mrs.  Gray,  Mrs.  Swan  could 
not  compel  contribution  by  Mrs.  Gray  and  the  heirs,  under  the  stat- 
ute, because  a  general  residuary  legatee  cannot  have  contribution,  if 
nothing  remains.  For  in  that  case  nothing  is  given  to  him,  but  on  a 
contingency  that  some  estate  may  remain;  and  if  no  estate  shall  re- 
main, then  nothing  devised  to  him  is  taken  from  him,  to  satisfy  a 
creditor  of  the  testator.  The  debts  and  legacies,  being  first  to  be  paid, 
are  to  be  considered  as  a  deduction  from  the  property  contemplated 
to  be  given;  and  if,  after  the  deduction,  there  is  no  remainder,  the 
contemplated  bounty  has  wholly  failed,  there  being,  in  fact,  no  object 
on  which  it  could  operate. 

Thus,  when  the  testator,  after  mortgaging  lands,  devised  them,  with 
a  clause,  that  the  devisee  pay  off  the  mortgage,  he  can  resort  to  no 
other  part  of  the  estate  for  relief ;  but  the  money  secured  is  considered 
as  a  deduction  from  the  property  devised.  But  the  case  of  King  v. 
King  et  al.,  3  P.  Wms.  358,  is  in  point.  There  the  testator,  being 
seised  of  freehold  lands,  and  of  a  copyhold,  which  last  he  had  mort- 
gaged, devised  the  copyhold  to  his  nephew ;  and  after  all  his  debts 
were  paid,  he  devised  the  rest  of  his  estate,  real  and  personal,  to  his 
son,  who  was  his  heir.  And  it  was  holden  that  the  import  of  this 
devise  was,  that  until  all  the  debts  were  paid,  nothing  was  devised  to 
the  son;  or  that  when  the  debts  should  be  paid,  then,  and  then  only, 
he  should  be  entitled  to  the  residue.  We  cannot,  therefore,  consider 
this  residuary  devise  to  Mrs.  Swan  as  specific,  within  the  rule  of  mar- 
shaling assets,  so  that  the  descended  lands  shall  first  be  sold. 

It  has  been  argued  by  the  counsel  for  the  petitioners,  admitting  the 
rule  to  be  generally  correct,  yet  that  in  this  case  it  ought  not  to  apply, 
because  in  the  residuary  devise  the  testator  gives,  not  only  all  his  real 
and  personal  estate,  of  which  he  was  then  seised  and  possessed,  but 
all  of  which  he  might  afterwards  die  seised;  and,  therefore,  that  he 
contemplated  after-acquired  estate,  which,  although  it  could  not  pass 
by  his  will,  yet  was  evidently  intended  to  pass;  and  that  this  intent 
ought  to  be  so  far  executed  as  to  cause  it  to  be  sold  for  the  payment 
of  debts,  before  the  residuary  devise  should  be  applied  for  that  pur- 
pose. 

This  argument,  however  ingenious,  is  not  solid.  For  the  testator 
cannot,  in  his  will,  charge  with  the  payment  of  his  debts  after-pur- 
chased lands,  any  more  than  he  can  devise  them.  And  if  in  this  case 
he  intended  it,  the  intent  was  void.     And  an  intent  against  law  cannot 


Ch.  4)  PAYMENT  OF  LEGACIES  AND  SHARES.  669' 

affect  this  rule  or  principle  of  law.  Otherwise  the  rights  ot  the  heirs 
would  be  implicated  by  a  testamentary  disposition,  made  before  the 
lands  were  acquired  by  the  testator.  If  this  case  should  be  allowed  as 
an  exception,  it  would  involve  most  residuary  devises ;  for  it  is  com- 
mon for  the  scrivener  to  include  expressly  all  the  residue  of  the  estate, 
of  which  the  testator  may  die  seised  or  possessed.  We  think,  there- 
fore, that  the  rule  should  be  applied  in  this  case,  without  admitting  the 
exception. 

The  order  of  the  court  was  entered  as  follows: 

Ordered  that  the  said  executors  be,  and  they  hereby  are  empowered 

and  licensed  to  raise  the  sum  of  $ by  sale  at  public  auction  of 

the  houses,  lands,  or  tenements,  of  which  the  said  Henry  Jackson  died 
seised  in  fee,  being  devised  by  him  by  his  last  will  and  testament, 
excepting  such  part  thereof  as  is  therein  devised  in  trust  for  his  sister, 
Susanna  Gray,  and  such  as  may  have  been  held  by  said  Jackson  to  the 
use  of,  or  in  trust  for,  any  other  person  or  persons,  the  said  sum,  when 
raised,  to  be  applied  to  the  payment  of  the  debts  aforesaid,  with  the 
incidental  charges  of  sale;  and  if  the  said  sum  cannot  be  raised  by 
such  sale,  it  is  further  ordered,  that  the  said  executors  may  raise  by 
sale  at  public  auction  of  so  much  of  the  real  estate  of  which  the  said 
Jackson  died  seised,  not  having  devised  the  same  in  and  by  his  last  will 
and  testament,  such  further  sum  of  money,  as  with  the  money  raised 
by  the  sale  first  above  ordered,  will  amount,  in  the  whole,  to  the  said 
sum  of  $ to  be  applied  as  aforesaid,  giving  bond,  etc. 


BIEDERMAN  v.  SEYMOUR. 

(High  Court  of  Chancery,  1841.    3  Beav.  368.) 
See  ante,  p.  467,  for  a  report  of  the  case. 


LANCEFIELD  v.  IGGULDEN. 

(Court  of  Appeal  in  Chancery,  1874.    L.  R.  10  Ch.  App.  136.) 

The  personal  estate  having  been  found  insufficient  for  payment  of 
the  testator's  debts,  two  questions  were  argued  when  the  cause  came 
on  for  further  consideration.  The  first  was  whether  specifically  de- 
vised estates  were  liable  to  contribute  ratably  with  the  residuary  real 
estate  to  meet  the  deficiency  of  the  personal  estate. 

The  Vice  Chancellor  (Law  Rep.  17  Eq.  556)  held  that  the  specifically 
devised  estates  were  not  liable  to  contribute  till  the  real  estate  com- 
prised in  the  residuary  devise  had  been  exhausted.  From  this  deci- 
sion the  defendants  appealed. 

Lord  Cairns,  L.  C.^*    Independently  of  the  state  of  the  law  before 

14  The  statement  of  facts  is  abbreviated,  and  part  of  the  opinion  of  Lord 
Oaims  and  the  concurring  opinion  of  Sir  W.  M.  James,  U  J.,  are  omitted. 


670 


PROBATA  AND    ADMINISTRATION.  (Part   3 


the  Wills  Act,  independently  of  the  Wills  Act,  and  independently  of 
the  construction  of  this  particular  will,  I  should  have  thought  that  in 
all  cases  there  would  have  been  a  very  strong  presumption  of  an  in- 
tention on  the  part  of  the  testator  of  this  kind;  that  if  a  man  be- 
queaths a  specific  portion  of  personalty  to  one  person  and  the  residue 
to  another  person;  and  if  he  devises  Whiteacre  to  one  person  and 
Blackacre  to  another,  and  the  residue  of  his  real  estate  to  a  third,  a 
different  conclusion  would  be  arrived  at  as  to  his  intention  with  re- 
spect to  the  payment  of  his  debts  in  the  second  case  to  that  which 
would  be  arrived  at  in  the  first  case ;  because  it  appears  to  me  that, 
from  the  well-known  habits  of  mankind,  as  every  one  expects  to  owe 
some  debts  at  his  death,  and  expects  that  his  personal  estate  will  be  the 
primary  fund  for  payment  of  his  debts,  a  man  who  gives  a  specific 
legacy  to  one  person  and  the  residue  to  another  may  well  suppose  that 
the  usual  rule  of  law  will  apply,  and  that  his  debts  will  be  paid  out  of 
the  residue ;  but  that  as  to  the  real  estate,  there  being  little  expectation 
that  the  real  estate  would  be  resorted  to  for  payment  of  debts,  a  man 
who  devises  Blackacre  to  one  person  and  Whiteacre  to  another,  and 
the  residue  to  a  third,  may  well  be  supposed  to  do  so  under  the  belief 
that  he  was  not  only  benefiting  the  specific  devisees  to  the  extent  of 
the  estates  devised  to  them,  but  also  the  residuary  devisee  to  the  ex- 
tent of  the  residue  given  to  him. 

But  when  I  look  at  this  particular  will,  there  appear  to  me  well 
marked  reasons  for  supposing  that  this  view  is  in  accordance  with 
the  testator's  intention.  For  the  testator  having  three  sisters  mar- 
ried and  one  unmarried,  he  portions  out  his  real  estate  among  them  by 
giving  specific  devises  to  the  married  sisters  and  their  families,  and 
the  residuary  real  estate  to  the  unmarried  sister,  and  then  gives  the 
residue  of  his  personal  estate,  after  payment  thereout  of  his  funeral 
and  testamentary  expenses  and  debts,  to  the  same  sister.  It  is  impos- 
sible not  to  see  that  whether  the  rule  of  law  was  present  to  the  tes- 
tator's mind  or  not,  he  anticipated  that  the  residue  of  the  personalty - 
would  be  the  fund  out  of  which  the  debts  would  be  paid.  So  far, 
therefore,  as  this  particular  will  is  concerned,  there  is  nothing  to  lead 
us  to  the  conclusion  that  the  residuary  real  estate  was  intended  to  be 
liable  to  the  debts  in  preference  to  the  specifically  devised  estates. 

Then  as  to  the  question  of  law.  Before  the  Wills  Act  the  rule  of 
law  was  as  well  settled  as  any  rule  of  the  court,  that  a  residuary  de- 
vise of  real  estate  was  treated  as  specific,  and  although  the  items  were 
not  specified,  it  was  considered  quite  as  much  specific  as  if  they  had 
been  specified.  The  result  of  this  general  rule  of  law  was,  that 
after-acquired  real  estate  would  not  pass  under  a  general  devise. 
Then  the  Wills  Act  stepped  in.  It  was  competent  for  the  Legisla- 
ture to  have  said  that  real  estate  should  be  treated  like  personal  estate 
for  all  intents  and  purposes ;  but  this  was  not  done.  The  provisions  of 
the  act  were  most  carefully  framed,  not  by  way  of  altering  phil- 
osophically the  general  rules  of  law,  but  by  taking  each  particular  evil 


Ch.    4)  PAYMENT  OF  LEGACIES  AND    SHARES.  G71 

intended  to  be  cured,  and  dealing  with  it  separately  by  particular 
enactments.  The  Legislature  had  to  deal  with  the  question  of  a  will 
passing  after-acquired  property,  and  it  has  dealt  with  it  by  the  twenty- 
fourth  section.  That  section  enacts  that  "every  will  shall  be  con- 
strued with  reference  to  the  real  estate  and  personal  estate  comprised 
in  it  to  speak  and  take  effect  as  if  it  had  been  executed  immediately 
before  the  death  of  the  testator,  unless  a  contrary  intention  shall  ap- 
pear by  the  will." 

The  effect  of  that  is,  as  Lord  Westbury  on  one  occasion  expressed 
it,  that  the  Legislature  attributed  to  the  will  a  continuing  operation 
as  if  the  devise  were  repeated  every  moment  until  the  testator's  death ; 
so  that  as  to  all  the  property  it  must  be  taken  as  if  he  made  it  the 
moment  before  his  death.  If  we  realize  this  hypothesis  of  the  Legis- 
lature, the  result  is  that  this  residuary  devise  must  be  taken  as  having 
been  made  the  moment  before  the  testator's  death,  but  as  a  devise 
specific  in  its  nature.  There  is  nothing  in  the  Act  to  alter  the  well- 
settled  rule  of  law  as  to  the  effect  of  a  residuary  devise  when  you 
know  the  time  at  which  it  was  made,  namely,  that  for  the  purpose  of 
payment  of  debts  it  is  to  rank  pari  passu  with  the  specific  devises. 

Then  with  regard  to  the  state  of  the  authorities,  *  *  *  j  fggj 
bound  to  say  that  *  *  *  Hensman  v.  Fryer,  Law  Rep.  3  Ch. 
420,  decided  by  Lord  Chelmsford,  *  *  *  was  a  distinct  expres- 
sion of  opinion  by  the  judge  who  was  then  the  head  of  this  court, 
that  the  Wills  Act  had  made  no  alteration  in  the  law  in  this  respect. 
Therefore,  both  on  principle  and  authority,  I  feel  bound  to  come  to  a 
different  conclusion  from  the  Vice  Chancellor  in  this  case,  and  his 
decree  must  be  altered  accordingly.^^     *     *     * 


MORISEY  V.  BROWN  et  al. 

(Supreme  Court  of  North  Carolina,  1907.     144  N.  C.  154,  56  S.  E.  704.) 

Connor,  J.*  The  principles  controlling  the  decision  of  this  case 
are  simple  and  well  settled.  "The  real  estate  of  the  testator  specific- 
ally devised  is  never  charged  with  the  payment  of  legacies,  unless 
either  the  intention  to  charge  pecuniary  legacies  upon  it  is  expressly 

15  See  Rice  v.  Rice  (Iowa)  119  N.  W,  714  (1909).  But  see  Kelly  v.  Richard- 
son, 100  Ala.  584,  at  page  598,  13  South.  785,  at  page  791  (1892),  where  the 
court  adopted  the  doctrine  that  "in  so  far  as  wills  pass  real  property  acquired 
after  [their]  execution,  the  devises  are  general  and  not  specific  unless  such 
after-acquired  property  is  so  described  as  to  admit  of  its  identification  by  the 
devisees."    See  Floyd  v.  Floyd.  29  S.  C.  102,  7  S.  E.  42  (18SS). 

In  Hensman  v.  Fryer,  L.  R.  3  Ch.  App.  420  (1867),  It  was  held  that  pecuniary 
legatees  and  the  residuary  devisee  were  liable  to  contribute  ratably  to  the 
payment  of  debts ;  but  that  case  has  not  been  followed  in  England.  Residuary 
devises  are  there  treated  as  specific,  and  pecuniary  legacies  must  be  taken  for 
debts  before  specific  devises  not  charged  with  the  payment  of  debts.  Collins 
V.  Lewis,  L.  R.  8  Eq.  708  (1869);  Tomkins  v.  Colthurst,  L.  R.  1  Ch.  D.  626 
(1875) ;   Farquharson  v.  Fleyer,  3  Ch.  D.  109  (1876). 

•  The  statement  of  facts  is  omitted. 


€72  PROBATE  AND    ADMINISTRATION.  (Part   3 

declared  or  is  to  be  necessarily  implied  from  the  context  of  the  will, 
or  from  the  facts  and  circumstances  of  the  case.  The  presumption 
as  between  the  specific  devisee  and  pecuniary  legatee  is  that  the  tes- 
tator intends  the  money  legally  to  be  paid  first  out  of  the  personal 
property,  and  next  out  of  the  real  estate  which  is  included  in  the  resi- 
due." 2  Underbill  on  Wills,  396.  This  is  also  the  rule  in  regard  to 
debts.  Bapt.  University  v.  Borden,  132  N.  C.  476,  44  S.  E.  47, 
1007.^« 

The  appellant,  conceding  this  to  be  the  law,  insists  that  the  devise 
of  "all  the  residue  of  my  lands  in  Sampson  county"  is  a  residuary 
devise.  We  do  not  concur  in  that  view.  If  the  word  "residue"  stood 
alone,  the  construction  contended  for  would  be  correct;  but  it  is  lim- 
ited by  the  words  "in  Sampson  county."  Item  6  of  the  will  gives 
to  other  persons  "the  balance  of  my  real  estate  in  and  around  War- 
saw in  Duplin  county."  These  words,  in  our  opinion,  make  the  de- 
vise specific  as  confined  to  the  lands  in  "Sampson  county" ;  thus  leav- 
ing undisposed  of  any  lands  the  testator  may  have  had  in  other  coun- 
ties. Whether  he  had  land  in  other  counties  does  not  appear,  either 
from  the  will  or  the  pleadings.  There  is  nothing  in  the  will  to  in- 
dicate that  he  knew  or  believed  that  his  personal  estate  would  not  be 
sufficient  to  pay  the  pecuniary  legacy,  or  that  he  intended  his  land  to 
be  subjected  to  the  payment  of  them. 

Following  the  well-settled  rule  that  such  intention  must  appear  ei- 
ther in  express  terms  or  by  at  least  reasonable  implication,  we  cannot 
charge  the  legacies  upon  the  land.  They  must  be  paid  ratably  out 
of  the  balance  in  the  hands  of  the  executor  from  the  proceeds  of  the 
personalty. 

Such  being  his  honor's  opinion,  the  judgment  must  be  affirmed.^^ 

16  "The  general  rule  of  law  as  to  pecuniary  legacies  (in  the  absence  of  any 
sufficient  indication  of  a  contrary  intention)  is  that  they  are  payable  by  the 
legal  personal  representatives  of  the  testator  (in  whom  the  whole  personal 
estate  vests  by  law)  out  of  the  personal  estate  not  specifically  bequeathed.  The 
presumption  is  that  the  testator  intends  them  to  be  so  paid.  Unless  charged 
upon  it  by  the  will,  they  are  not  payable  out  of  the  real  estate.  The  princi- 
ple of  the  exemption  of  personal  estate  specifically  bequeathed  is  that  it  is 
necessary  to  give  effect  to  the  intention  apparent  by  the  gift.  If  the  bequest 
is  of  a  particular  chattel,  such  as  a  horse  or  ship,  it  is  manifest  that  the 
testator  intended  the  thing  to  pass  unconditionally,  and  in  statu  quo,  to  the 
legatee;  which  could  not  be  if  it  were  subject  to  the  payment  of  funeral  and 
testamentary  expenses,  debts,  and  pecuniary  legacies.  As  against  creditors, 
the  testator  cannot  wholly  release  it  from  liability  for  his  debts;  but,  as 
against  all  persons  taking  benefits  under  his  will,  he  may.  The  same  principle 
applies  to  everything  which  a  testator,  identifying  it  by  a  sufficient  descrip- 
tion, and  manifesting  an  intention  that  it  should  be  enjoyed  or  taken  in  the 
state  and  condition  indicated  by  that  description,  separates,  in  favor  of  a 
particular  legatee,  from  the  general  mass  of  his  personal  estate, — the  fund 
out  of  which  pecuniary  legacies  are,  in  the  ordinary  course,  payable."  Lord 
Chancellor  Selborne,  in  Robertson  v.  Broadbent,  L.  R.  8  App.  Cas.  812,  815 
(1883). 

17  In  r.ediger  v.  Canfleld,  78  App.  Div.  596,  79  N.  Y.  Supp.  758  (1903),  the 
testator's  direction  that  his  mother's  debts  be  paid  out  of  "my  estate"  was 
held  not  to  charge  those  debts  on  his  real  estate. 


Ch.    4)  PAYMENT  OF  LBGACIB3S  AND    SHARES.  673 

GREVILLE  V.  BROWNE. 

(House  of  Lords,  1859.     7  H.  L.  C.  689.) 

This  was  an  appeal  against  a  decision  of  the  Lord  Chancellor  and 
Lord  Justice  Blackburne,  sitting  as  Commissioners  of  Appeal,  from 
the  judgment  of  the  Encumbered  Estates  Court. 

John  Browne,  of  Galway,  had  one  son,  Michael  J,  Browne,  and 
two  daughters,  Maria  (Lady  Ffrench)  and  the  respondent.  By  his 
will  (which  contained  many  interlineations),  dated  20th  January,  1825, 
he  bequeathed  to  his  wife  an  annuity  of  ilOO  in  addition  to  what  she 
was  entitled  to  under  her  marriage  settlement,  "the  same  to  be  in  lieu 
and  satisfaction  of  any  dower  or  thirds  she  may  be  entitled  to  out  of 
my  real  estates,  or  any  other  property  I  may  die  possessed  of,"  with 
the  usual  power  of  distress.  Then  followed  a  bequest  of  the  household 
furniture  to  his  wife ;  then  a  sum  of  il,000  in  trust,  to  give  such  part 
of  it  as  she  might  think  fit  to  his  daughter  Anne  on  her  marriage  with 
her  mother's  consent,  "to  bear  no  interest  till  then ;  the  entire  (whole) 
or  the  remainder  of  the  said  sum  of  il,000  to  go  and  be  considered  as 
part  of  the  residue  of  any  property  as  hereafter  bequeathed  to  my  first 
object  on  earth,  my  best  of  sons,  Michael  Joseph  Browne.  I  further 
bequeath  to  my  dear  and  very  dear  daughter  Anne  Browne,  in  addition 
to  any  part  of  the  above-recited  sum  of  £1,000,  a  further  or  additional 
sum  of  £5,000,  sterling,  including  the  property  already  settled  on  her 
by  my  marriage  articles ;  and  also  the  value  of  the  property  made  over 
for  her  use  before,  all  payable  on  her  marriage  with  the  consent  of  her 
mother,  the  interest  thereof,  at  five  per  cent,  to  be  regularly  paid  till 
then.  But  should  my  said  daughter  Anne  Browne  die  before  her  mar- 
riage, then  my  will  is  that  this  bequest  shall  be  considered  as  part  of 
the  residue  of  my  property,  and  go  and  merge  in  same."  To  his 
daughter  Lady  Ffrench  (to  whom  he  had  given  as  a  portion  £10,000) 
and  to  her  husband  and  children,  and  to  his  own  sister  Julia  he  left 
£5  apiece,  and  concluded  thus:  "As  to  all  the  rest,  residue,  and  re- 
mainder of  any  property  I  may  die  possessed  of,  or  entitled  to,  of  what 
nature  soever,  whether  estates,  freehold  leases,  leases  for  years,  stocks 
of  every  kind,  also  bills,  bonds,  notes,  annuities,  or  otherwise,  I  hereby 
bequeath,  devise,  give,  and  grant  the  same  to  my  first  object  on  earth, 
my  son,  Michael  Joseph  Browne,  in  the  fullest  manner  I  can  or  shall 
have  it  in  my  power,  with  liberty  to  him  to  dispose  of  the  same  in  any 
manner  he  may  think  proper,"  and  he  appointed  his  son  his  sole  exec- 
utor. By  a  codicil  he  appointed  John  Kirwan  his  executor  in  case  his 
son  should  not  wish  to  act  as  one  of  the  executors. 

The  testator  died  in  1825,  and  his  son  having  declined  to  act  as 
executor,  the  will  was  proved  by  Kirwan. 

Michael  Joseph  Browne,  the  son,  entered  into  possession  of  the 
estates,  and  paid  the  interest  on  the  legacy  of  £5,000  to  his  sister 

C0ST.WlLLS^3 


g74  PROBATE   AND    ADMINISTRATION.  (Pait   3 

down  to  18-12.  On  the  1st  September,  1846,  he  mortgaged  the  estates 
vo  the  appellant  and  other  persons.  On  the  29th  May,  1852,  a  petition 
for  sale  was  presented  in  the  Encumbered  Estates  Court,  and  an  abso< 
lute  order  for  sale  was  made  on  the  8th  September,  1852.  On  the 
4th  December,  1855,  the  estates  were  sold  for  a  sum  of  £69,410,  a  sum 
not  sufficient  to  pay  off  the  mortgages  and  interest  then  due. 

On  the  settling  of  the  final  schedule  on  the  15th  December,  1856, 
Mr.  Commissioner  Longfield  held  that  the  respondent,  Anne  Browne, 
was  entitled  to  be  paid  the  legacies  bequeathed  to  her  by  the  will  of 
her  father  in  priority  to  the  mortgagees.  The  full  court  confirmed  this 
decision,  and  on  appeal  to  the  Lord  Chancellor  and  Lord  Justice 
Blackburne  in  the  Court  of  Appeal,  it  was  again  affirmed.  The  pres- 
ent appeal  was  then  brought. 

The  Lord  Chancellor  (Lord  Campbell.)  '*  My  Lords,  in  this 
case  I  am  of  opinion  that  the  decision  of  Mr.  Commissioner  Longfield 
and  J\Ir.  Commissioner  Hargrave,  confirm.ed  by  the  Lord  Chancellor 
of  Ireland  and  the  Lord  Justice  of  Appeal  in  Ireland,  is  right ;  and  I 
think  that  if  your  Lordships  were  to  come  to  a  contrary  conclusion, 
you  would  disturb  the  well-settled  and  useful  rules  of  property  which 
have  prevailed  for  a  century  and  a  half. 

My  Lords,  the  first  question  is  whether  these  legacies  are  a  charge 
upon  the  real  estate.  If  it  were  res  Integra,  and  we  had  to  construe 
this  will  by  the  .language  employed,  without  any  reference  to  the  con- 
struction which  has  been  put  upon  similar  language  in  other  wills,  I 
might  allow  that  there  is  great  force  in  the  very  able  and  ingenious 
argument  we  have  had  from  the  bar.  It  might  then  be  contended 
that  the  testator  had  no  notion  whatever  of  charging  the  land  with 
these  legacies;  but  we  find  that  from  the  time  of  Lord  Macclesfield 
and  Lord  Cowper,  down  to  the  time  of  Lord  Cottenham  and  Vice- 
Chancellor  Page  Wood,  a  rule  has  prevailed  upon  this  subject  which 
has  been  acted  upon  uniformly  by  all  judges  except  Lord  Alvanley,  a 
very  eminent  authority  (I  do  not  mean  in  the  slightest  degree  to  dis- 
parage him),  but  with  that  exception  by  all  the  judges  that  have  deter- 
mined such  cases.  For  nearly  a  century  and  a  half  this  rule  has  been 
laid  down  and  acted  upon,  that  if  there  is  a  general  gift  of  legacies, 
and  then  the  testator  gives  the  rest  and  residue  of  his  property,  real 
and  personal,  the  legacies  are  to  come  out  of  the  realty.  It  is  consid- 
ered that  the  whole  is  one  mass ;  that  part  of  that  mass  is  represented 
by  legacies,  and  that  what  is  afterwards  given,  is  given  minus  what 
has  been  before  given,  and  therefore  given  subject  to  the  prior  gift. 
That  seems  to  me  to  be  the  view  which  was  taken  in  the  cases  before 
Lord  Cowper  and  Lord  Macclesfield.  The  language  in  which  it  is 
expressed  varies  from  time  to  time,  but  still  that  rule  seems  to  have 
been  uniformly  acted  upon,  and  I  would  say,  in  the  language  used  by 

18  The  opinions  of  Lord  Brougham,  Lord  Cranworth,  Lord  Wensleydale,  and 
Lord  Kincsdown  are  omitted. 


Ch.    4)  PAYMENT  OF  LEGACIES  AND    SHARES.  675 

Vice  Chancellor  Page  Wood,  in  the  last  case  upon  the  subject,  Wheel- 
er V.  Howell  [3  K.  &  J.  198],  that  in  the  present  case  "I  feel  that  I 
should  be  only  introducing  a  useless  and  mischievous  distinction  if  I 
held  the  legacy  not  to  be  a  charge,  the  principle  of  the  decision  being 
in  truth  the  same  in  the  case  of  legacies  as  in  that  of  debts." 

I  therefore  conceive  it  to  be  unnecessary  to  travel  over  and  criticise 
that  long  series  of  cases  which  seems  to  establish  that  as  a  general  rule 
which  must  be  acted  upon,  that  the  testator,  in  using  this  language  in 
his  will,  must  be  supposed  to  use  it  according  to  the  sense  in  which 
the  words  have  uniformly  been  construed,  and  to  mean  that  the 
legacies  should  be  a  charge  upon  the  real  estate.  Here  the  testator 
gives  the  legacies  generally,  and  then  he  says:  "As  to  all  the  rest, 
residue  and  remainder  of  any  property  I  may  die  possessed  of,  or 
entitled  to,  of  what  nature  soever,  whether  estates  freehold,  leases, 
leases  for  years,  stocks  of  every  kind,  also  bills,  bonds,  notes,  annu- 
ities or  otherwise,  I  hereby  bequeath,  devise,  give  and  grant  the  same 
to  my  first  object  on  earth,  my  son  Michael  Joseph  Browne,  in  the 
fullest  manner  I  can."  It  is  quite  clear,  that  here  there  is  first  a  gen- 
eral gift  of  legacies,  and  then  there  is  a  disposition  of  the  rest,  residue, 
and  remainder  of  his  property,  real  and  personal,  of  what  nature 
soever,  to  his  son.  Therefore,  following  the  rule  which  has  been  so 
long  acted  upon,  these  legacies  are  clearly  charged  upon  the  real 
estate. 

Then,  my  Lords,  as  to  the  second  point,  the  discharge.  Twenty-one 
years  after  the  death  of  the  testator,  his  son  mortgaged  the  land  for 
£50,000;  and  it  is  allowed  that  upon  the  face  of  the  deed  there  is  no 
reference  whatsoever  to  those  legacies.  No  part  of  the  legacies  was 
paid ;  and  I  presume,  that  after  he  had  thus  charged  the  land  ^yith  the 
legacies,  unless  there  is  some  special  power  in  the  will  enabling  the 
son  to  sell  the  land  discharged  from  the  legacies,  it  can  hardly  be  sup- 
posed that  what  has  taken  place  can  amount  to  a  discharge  of  the  bur- 
den that  was  placed  upon  the  land  in  respect  of  the  legacies.  No  au- 
thority has  been  quoted  to  show  that  this  power  exists.  Is  there,  then, 
here  any  such  special  power?  I  am  of  opinion  that  the  words  that 
follow  what  I  have  read  are  mere  surplusage;  they  merely  express 
what  would  otherwise  be  implied.  This  testator  is  fond  of  a  florid 
style;  he  deals  in  superlatives;  he  is  very  rhetorical,  and  he  makes 
use  of  a  great  many  more  words  than  would  be  sufficient  to  accomplish 
his  purpose.  He  says:  "I  hereby  devise,  bequeath,  give  and  grant 
the  same  to  my  first  object  on  earth,  my  son,  Michael  Joseph  Browne, 
in  the  fullest  manner  I  can  or  shall  have  it  in  my  power,  with  liberty  to 
him  to  dispose  of  same  in  any  way  he  may  think  proper."  We  are 
now  considering  whether  these  lands  have  been  discharged  of  the 
legacies:  We  must  consider  that  they  are  charged  with  them.  Then 
he,  having  thus  charged  the  land,  did  he  mean  by  those  words  to  give 
his  eldest  son  the  power  of  disposing  of  the  land  at  any  time,  so  that 
the  younger  children  would  be  deprived  of  the  security  which  he  had 


^576  PROBATE   AND    ADMINISTRATION.  (Part   3 

before  provided  for  them?    I  think  that  no  such  meaning  can  be  educ- 
ed from  the  language  he  employs,  and  that  therefore  this  mortgage  has 
not  the  effect  of  discharging  the  land  of  these  legacies.     My  opinion 
is,  that  this  appeal  should  be  dismissed,  and  the  decree  affirmed. 
Orders  appealed  from  affirmed.    Appeal  dismissed,  with  costs.^* 


In  re  BANKS. 

BANKS  V.  BUSBRIDGE. 

(Supreme  Court  of  Judicature,  Chancery  Division.    [1905]  1  Cli.  547.) 

Buckley,  J.*  The  personal  estate  is  primarily  Hable  for  the  pay- 
ment of  debts  and  funeral  and  testamentary  expenses ;  but  the  testa- 
tor may  exonerate  it,  either  by  express  words  or  by  an  indication  of 
intention  to  be  found  in  the  will  which  leads  to  the  court  being  judi- 
cially satisfied  that  it  was  the  testator's  intention  to  exonerate  it.  It 
is  not  enough  that  he  charges  his  real  estate  with  the  payment  of 
debts.  It  is  necessary  to  find,  not  that  the  real  estate  is  charged,  but 
that  the  personal  estate  is  discharged.  This  need  not  be  done  by  ex- 
press words,  but  there  must  be  found  in  the  will  plain  intention  or 
necessary  implication  to  operate  exoneration.f  This  testator  gives  his 
personal  estate  to  Keziah  Ann  Banks.  He  specifically  devises  certain 
real  estate,  and,  subject  to  that  devise,  devises  all  his  real  estate  to  his 
trustees  "subject  to  the  payment  of  my  just  debts  and  funeral  and  tes- 
tamentary expenses." 

18  "The  court  below  rightly  held  that  the  blending  of  the  real  and  personal 
estate  in  the  residuary  clause  bound  the  real  estate  for  the  payment  of  the 
legacies  by  implication,  since  'the  residue  and  remainder'  can  only  be  ascer- 
tained after  the  payment  of  the*  debts,  legacies  and  expenses.  This  has  been 
uniformly  held  in  this  state."  Williams,  J.,  in  Sloan's  Appeal,  Watt's  Estate, 
168  Pa.  422,  32  Atl.  42  (1895). 

"The  effect  of  placing  realty  with  the  residue  was  to  subject  It  to  the  gen- 
eral rule  governing  residuary  estates."  Dubois,  J.,  in  Tyler  v.  Tallman,  29 
R.  I.  57,  68  Atl.  948  (1908).  Also,  Simonsen  v.  Hutchinson,  231  111.  508,  83  N. 
E.  183  (1907).  But  see  Brill  v.  Wright,  112  N.  Y.  129,  19  N.  E.  628.  8  Am.  St 
Rep.  717  (1889) ;   Pearson  v.  Wartman,  80  Md.  528,  31  Atl.  446  (1895). 

"The  general  rule  Is  that,  after  certain  legacies  are  given  without  any  ex- 
press provision  of  means  of  payment,  a  residuary  gift  blending  the  real  and 
personal  property  of  the  testator  creates  a  charge  of  the  legacies  upon  the 
entire  estate.  *  •  ♦  A  court  of  equity  can  not  only  decree  the  legacy  to 
be  a  charge  upon  the  real  estate,  if  the  will  can  be  so  construed,  but  with  its 
elastic  procedure  it  can  also  provide  the  method  of  securing  the  same,  and 
designate  the  particular  real  estate  which  shall  in  the  first  instance  be  reached, 
because  the  equitable  rights  of  the  present  holders  may  vary."  Cornish,  J., 
in  Walker  v.  Follett's  Estate,  105  IMe.  201,  73  Atl.  1092,  1094  (1909). 

"It  Is  esta"blished  that  the  rule  of  Greville  v.  Browne,  7  H.  L.  C.  689,  applies 
BO  as  to  render  legacies  payable  out  of  a  mixed  fund,  whether  the  legacies 
are  given  before  or  after  the  gift  of  residue.  See  Elliott  v.  Dearsley,  16  Ch. 
D.  322.  329 ;  In  re  Grainger,  [19001  2  Ch.  756,  707,  [1902]  A.  C.  1."  Swinfen 
Bady,  J.,  In  In  re  Balls,  [1909]  1  Ch.  791,  795. 

♦  The  statement  of  facts  Is  omitted. 

+  The  .^anie  thin.:,'  is  tnio  ;is  tf)  charging  legacies  on  land.  Reid  T.  Oorrigan, 
143  111.  402,  32  N.  B.  387  (1892). 


Ch.  4)  PAYMENT  OF  LEGACIES  AND  SHARES.  6'7'i^ 

The  argument  addressed  to  me  has  been,  that  because  the  personal 
estate,  that  is  to  say,  the  whole  personal  estate,  is  given  to  Keziah  Ann 
Banks,  I  ought  to  find  in  that  fact  an  expression  of  intention  that  the 
personal  estate  shall  not  bear  the  debts  subject  to  which  the  real  estate 
is  afterwards  devised.  I  am  unable  from  that  fact  to  find  that  inten- 
tion. There  is  an  indication  to  the  contrary  at  the  end  of  the  will- 
namely,  that  the  testator  desires  that  none  of  his  real  estate  be  sold 
whilst  male  descendants  of  the  name  of  Banks  are  living.  In  Brum- 
mel  V.  Prothero  (1796)  3  Ves.  Ill,  114,  the  Master  of  the  Rolls,  Sir 
Richard  Pepper  Arden,  says:  "This"  case  "is  stripped  of  every  cir- 
cumstance except  that  of  a  devise  to  a  trustee  for  payment  of  debts 
and  a  general  bequest  of  the  personal  estate  to  the  executor.  There 
is  no  one  case  since  French  v.  Chichester  (1707)  3  Bro.  P.  C.  16  (2d 
Ed.),  the  first  upon  the  subject,  in  which  such  words  as  these  have 
been  alone  sufficient  to  exempt  the  personal  estate.  It  has  oyer  and 
over  again  been  decided  that  such  words  are  not  sufficient  to  raise  such 
a  demonstration  as  Lord  Thurlow  says,  in  Duke  of  Ancaster  v.  Mayer, 
1  Bro.  C.  C.  454,  is  necessary."  The  personal  estate  was  there  held 
not  to  be  exonerated,  and  that  notwithstanding  that  there  was  in  that 
case,  not  as  here  a  mere  charge  of  debts,  but  a  trust  to  pay  the  debts. 

The  present  case  diflfers  in  the  fact  that  Keziah  Ann  Banks  is  not 
here  the  executor;  but  this  does  not,  I  think,  differentiate  the  case. 
A  gift  to  A.  is  none  the  less  a  beneficial  gift  because  A.  is  also  ap- 
pointed executor.  In  Haslewood  v.  Pope  (1734)  3  P.  Wms.  322, 
there  was  a  devise  of  real  estate  to  trustees  upon  trust  to  sell  so  much 
as  would  raise  money  to  discharge  all  the  debts  the  testator  should 
owe  at  his  death,  and  a  gift  of  all  the  personal  estate  to  the  testator's 
daughter,  whom  he  made  sole  executrix.  Lord  Talbot,  L.  C,  held  that 
the  personal  estate  was  not  exonerated.  I  agree  that  there  was  a  spe- 
cial reason  upon  which  also  he  founded  himself,  namely,  that  the  same 
person  was  donee  of  the  personal  estate  and  also  devisee  of  the  sur- 
plus of  the  real  estate  in  tail.  The  passage  in  Mr.  Theobald's  book  on 
Wills  (6th  Ed.,  at  the  top  of  page  802)  is  not,  I  think,  borne  out  by 
the  cases  which  he  cites.  There  was  in  those  cases,  not,  as  would  seem 
to  be  there  implied,  a  mere  charge  of  debts  on  the  real  estate  (which 
is  the  case  in  the  will  before  me),  but  a  trust  to  sell  the  real  estate  and 
thereout  pay  the  debts. 

There  is  nothing  more  here  than  a  devise  of  the  real  estate  subject 
to  the  debts.  In  my  judgment  the  personal  estate  is  not  exonerated, 
and  the  real  estate  is  only  charged  in  aid  of  the  personal  estate.* 

*  While  a  general  direction  to  pay  legacies  out  of  a  mixed  fund  of  residue 
charges  them  ratably  on  the  portions  attributable  to  realty  and  personalty 
(In  re  Spencer  Cooper,  Poe  v.  Spencer  Cooper,  [1908]  1  Ch.  130),  the  charge  im- 
plied from  blending  the  residue  in  one  mass  has  been  held  In  England  to  leave 
the  legacies  payable  primarily  out  of  the  personalty  and  to  allow  the  realty 
to  be  resorted  to  only  in  aid  of  the  personalty  if  that  is  insxiflacient.  In  re 
Boards.  Knight  v.  Knight,  [1895]  1  Ch.  499. 


678 


PROBATE  AND    ADMINISTRATION.  (Part   3 


LACEY  V.  COLLINS. 

(Supreme  Court  of  Iowa,  1907.     134  Iowa,  583,  112  N.  W.  101.) 

The  will  of  John  L.  Collins,  with  a  codicil  attached,  was  admitted  to 
probate  March  29,  1904,  and,  in  so  far  as  material  to  this  controversy, 
was  in  words  following: 

"First,  I  desire  that  all  my  just  debts  be  paid  including  my  funeral 
expenses. 

"Second.  I  bequeath  and  devise  to  my  daughter,  Margaret  M.  Col- 
lins (legally  adopted  by  my  wife  and  myself,  her  former  name  being 
Rebecca  Crilley),  all  the  remainder  of  my  property  of  every  kind,  both 
personal  and  real,  to  have  and  to  hold  and  do  with  as  may  seem  best 
by  her,  and  she  shall  be  my  sole  legatee. 

"Third.  I  desire,  and  do  hereby  nominate  and  appoint  E.  R.  Lacey 
as  my  executor  of  this  my  last  will  and  testament,  and  to  give  such 
bond  as  the  court  may  direct. 

"Fourth.  I  desire  that  the  Independent  Order  of  Odd  Fellows  of 
Columbus  Junction,  Iowa,  shall  take  charge  of  my  remains  and  direct 
the  funeral  services. 

"Fifth.  I  desire  that  a  suitable  tombstone  to  be  placed  at  the  grave 
of  myself  and  wife,  not  to  exceed  the  sum  of  one  hundred  dollars  each, 
and  on  my  monument  I  desire  to  have  the  Emblem  of  the  I.  O.  O.  F. 
and  to  be  similar  to  that  of  R.  Caldwell's  monument  in  the  Columbus 
City  Cemetery. 

"Codicil. 

"I,  John  L.  Collins,  hereby  amend  my  will  heretofore  made,  by  add- 
ing this  as  a  codicil,  to  wit :  I  give  and  bequeath  my  sister  Ellen  Col- 
lins ($1,000.00)  one  thousand  dollars,  to  be  paid  her  by  my  executor, 
and  except  for  this  change,  I  readopt  my  former  will." 

E.  R.  Lacey  was  duly  appointed  executor  of  the  estate  and  in  Au- 
gust, 1905,  filed  his  report,  and  a  few  days  later  applied  to  the  court 
for  an  order  to  sell  certain  real  estate  to  procure  funds  out  of  which 
to  pay  the  legacy  of  Ellen  Collins.  To  this  Margaret  M.  Collins,  ob- 
jected, on  the  ground  that  real  estate  is  not  liable,  under  the  terms  of 
the  will,  for  the  payment  of  the  legacy.  On  hearing  the  sale  was  or- 
dered as  prayed.     Margaret  M.  Collins  appeals.     Affirmed. 

Ladd,  J.  The  sole  question  for  determination  is  whether  the  legacy 
to  Ellen  Collins  is  payable  out  of  the  real  estate  of  deceased.  The 
personal  property  left  by  him  was  inadequate  to  meet  the  indebtedness 
of  the  estate  and  pay  the  funeral  expenses.  The  will  speaks  as  of  the 
date  of  the  testator's  death,  and  the  codicil  is  to  be  construed  as  part 
of  it.  Looking  thereto,  the  intention  of  the  testator  appears  to  have 
been:  (1)  That  his  debts,  including  funeral  expenses,  be  paid;  (2) 
that  tombstones  be  erected  at  the  graves  of  himself  and  wife  at  a  cost 
not  exceeding  $200;    (3)   that  $1,000  be  paid  by  his  executor  to  his 


Ch.    4)  PAYMENT  OF   LEGACIES  AND    SHARES.  679 

sister,  Ellen  Collins;  and  (4)  that  "all  the  remainder  of  my  property 
of  every  kind,  both  real  and  personal,"  pass  to  his  adopted  daughter, 
Margaret  M.  Collins.  The  will  recites  that  "she  shall  be  my  sole  lega- 
tee" ;  but  this  was  modified  by  the  bequest  in  the  codicil  to  his  sister. 
It  will  be  observed  that  the  disposition  of  property  is  not  made  in  the 
will  in  the  order  above  indicated,  but  as  the  debts,  including  funeral 
expenses,  the  erection  of  the  monuments  and  the  legacy  to  the  sister 
are  to  be  paid  from  the  estate,  and  that  left  to  appellant  is  designated 
as  "all  the  remainder  of  my  property  of  every  kind,  both  real  and  per- 
sonal." 

The  intention  that  the  adopted  daughter  shall  take  the  residuary  es-  ■ 
tate  is  manifest.  See  Kightley  v.  Kightley,  2  Ves.  Jr.  328.  No  other 
inference  is  reasonably  to  be  drawn  therefrom.  This  being  so,  we 
have  to  say  whether  it  was  the  intention  of  the  testator  to  charge  his 
entire  estate,  regardless  of  its  character,  with  the  payment  of  the 
legacy  to  Ellen  Collins.  The  will  contains  no  express  provision  to  this 
effect,  and,  unless  such  intention  is  to  be  implied  therefrom,  the  rule 
must  prevail  that,  even  though  the  personal  estate  is  insufficient,  it  is 
not  only  the  primary,  but  the  only  fund  to  which  resort  may  be  had 
for  this  purpose.  Morey  v.  Morey,  113  Iowa,  152,  84  N.  W.  1039 ; 
Newsom  v.  Thornton,  82  Ala.  402,  8  South.  261,  60  Am.  Rep.  743 ; 
Montgomery  v.  McElroy,  3  Watts  &  S.  (Pa.)  370,  38  Am.  Dec.  771; 
See  In  re  Will  of  Newcomb,  98  Iowa,  175,  67  N.  W.  587. 

But,  where  such  intention  is  clearly  deducible  from  the  language  of 
the  will,  the  realty  will  be  charged  with  the  payment  of  legacies,  not- 
withstanding the  omission  to  expressly  so  direct.  Morey  v.  Morey, 
supra;  Greville  v.  Brown,  7  H.  L.  703;  Wright  v.  Page,  10  Wheat. 
210,  6  L.  Ed.  303;  McCampbell  v.  McCampbell,  5  Eitt.  (Ky.)  97,  15 
Am.  Dec.  48 ;  Knotts  v.  Bailey,  54  Miss.  235,  28  Am.  Rep.  348 ;  Thur- 
ber  v.  Battey,  105  Mich.  718,  63  N.  W.  995 ;  McQueen  v.  Lilly,  131 
Mo.  9,  31  S.  W.  1043;  Evans  v.  Beaumont,  16  Lea  (Tenn.)  713;  Ar- 
nold V.  Dean,  61  Tex.  249 ;  Lee  v.  Lee,  88  Va.  805,  14  S.  E.  534;  Van 
Winkle  v.  Van  Houten,  3  N.  J.  Eq.  172.  And  where  the  legacies  are 
pecuniary  and  general,  and  there  is  a  gift  of  the  residue  of  the  estate, 
both  real  and  personal,  and  this  is  blended  as  one  mass,  the  rule  pre- 
vails that  this  conclusively  manifests  an  intention  to  charge  the  entire 
residuary  estate,  both  real  and  personal,  therewith.  Pitkin  v.  Peet, 
87  Iowa,  268,  54  N.  W.  215 ;  Sloan's  Appeal,  168  Pa.  422,  32  Atl.  42, 
47  Am.  St.  Rep.  889 ;  Brill  v.  Wright,  8  Am.  St.  Rep.  723,  112  N.  Y. 
129,  19  N.  E.  628;  Knotts  v.  Bailey,  supra;  Newsom  v.  Thornton, 
supra ;  Lewis  v.  Darling,  16  How.  1,  14  L.  Ed.  819.  See  numerous 
decisions  collected  in  19  Am.  &  Eng.  Ency.  of  Law  (2d  Ed.)  1354  et 
seq. ;   Lee  v.  Lee,  88  Va.  805,  14  S.  E.  534. 

In  the  last  case,  sometimes  cited  as  holding  that  the  rule  is  different 
where  the  bequest  is  by  codicil,  the  latter  provides  for  payment  "out 
of  any  money  due  and  belonging  to  my  estate,"  and  this  was  construed 
to  point  out  the  fund  from,  which  the  legacy  was  to  be  taken.    The  ba- 


6g0  PROBATE  AND    ADMINISTRATION.    '  (Part   3 

sis  of  the  rule  is  that  a  mixed  fund  has  been  created  out  of  which  to 
pay  the  legacies.  Tidd  v.  Lister,  3  De  G.,  M.  &  G.  857 ;  Ellis  v.  Bar- 
trum,  25  Beav.  110.  It  is  not  necessary  that  words  of  like  import  and 
equivalent  in  meaning,  as  in  this  case,  be  employed.  In  re  Hawden 
(1904)  1  Ch.  693;   Hart  v.  Williams,  77  N.  C.  436. 

Guided  by  these  well-established  principles,  the  district  court  rightly 
held  that  the  legacy  to  Ellen  Collins  was  payable  out  of  the  realty, 
and  its  order  directing  the  sale  is  approved.    Affirmed.^" 


MOORE  V.  ALDEN  et  al. 

(Supreme  Judicial  Court  of  Maine,  1888.    80  Me.  301,  14  Atl.  199,  6  Am. 

St  Rep.  203.) 

Peters,  C.  J.**  Horatio  E.  Alden,  whose  will  is  presented  to  be 
construed  by  the  court,  after  directing  that  certain  necessary  bills  be 
paid,  and  giving  his  wife  certain  property  outright,  also  gives  to  her  an 
annuity  of  $1,000  for  her  life-time,  the  annuity  to  be  paid  from  the 
earnings  of  his  individual  and  partnership  properties ;  and  he  declares 
that  these  gifts  to  his  wife  are  to  be  in  heu  of  all  allowances,  dower, 
and  distributive  share  to  which  she  might  be  entitled  out  of  his  estate. 
He  then  grants  other  annuities,  their  payment  made  subject  to  a  prior 
payment  of  his  wife's  annuity,  and  makes  sundry  bequests  to  take 
effect  on  the  death  of  his  wife.  It  appears  that  he  died  seized  of  dow- 
able  real  estate ;  that  no  child  was  left  by  him ;  that  the  widow  is  now 
39  years  old ;  and  that  the  entire  estate  reduced  to  money,  now  in  the 
hands  of  the  trustee,  the  administration  accounts  having  been  finally 
settled,  amounts  to  $11,707.61. 

It  is  evident  enough  that  the  annuity  to  the  widow,  to  say  nothing 
of  the  other  annuities,  cannot  be  obtained  from  the  income  and  earn- 
ings of  the  estate.  And  the  question  of  the  case  is  whether  she  is 
entitled  to  receive  the  amount  each  year,  although  it  will  be  necessary 
to  entrench  upon  the  corpus  of  the  estate  to  supply  the  deficiency. 
She  correctly  claims  that  the  full  annuity  should  be  paid  to  her  as 
long  as  the  estate  lasts,  upon  the  rule,  which  appears  to  be  well  estab- 
lished in  the  law,  that,  where  a  testamentary  gift  is  made  by  husband 
to  wife,  in  satisfaction  of  her  waiver  of  dower  in  his  estate,  the  gift 
has  a  preference  over  all  other  unpreferred  legacies,  and  for  the  rea- 
son that  the  estate  receives  a  valuable  consideration  for  such  gift. 
The  principle  is  based  upon  the  idea  of  contract  between  husband  and 
wife.     He  dictates  the  terms,  and  she  accepts  them.     The  estate  gets 

"  But  see  Lee  v.  Lee,  88  Va.  805,  14  S.  E,  534  (1892),  where,  also,  the  leg^ 
acy  wne  given  In  a  codicil.  That  case  does  not,  however,  purport  to  deny  the 
doctrine  of  Greville  v.  Browne,  ante,  p.  073. 

=  iTl)i'  statement  of  facts  and  the  part  of  the  opinion  relating  to  costs 
are  omitted. 


Ch.    4)  PAYMENT   OF   LEGACIES   AND    SHARES.  681 

her  right  of  dower,  and  she  receives  the  gift  in  the  will  in  lieu  of 
dower. 

This  is  an  old  doctrine,  originating  with  Lord  Cowper  in  Burridge 
V.  Bradyl,  1  P.  Wms.  127,  adopted  by  Lord  Hardwicke  in  Blower  v. 
Morret,  2  Ves.  Sr.  422,  which  has  so  extensively  prevailed  as  never 
to  have  been  dissented  from,  that  we  discover,  either  in  the  English 
or  American  cases.  Its  application  was  resisted  by' counsel  in  an  early 
case  (Davenhill  v.  Fletcher,  Amb.  244),  where  the  gift  to  the  wife 
greatly  exceeded  in  amount  the  value  of  the  dower,  the  argument  be- 
ing placed  on  the  great  inadequacy  of  consideration;  but  the  point 
was  overruled,  the  answer  to  it  being  that  the  testator  is  the  only  and 
best  judge  of  the  price  at  which  he  is  desirous  to  become  the  purchaser 
of  the  wife's  right.    Rop.  Leg.  *432. 

The  rule  does  not,  however,  apply,  if  the  wife  has  no  right  of  dower. 
Her  right  must  be  subsisting  at  the  death  of  the  testator.  Otherwise 
she  is  not  a  purchaser.  In  such  case  she  pays  no  consideration.  Id. 
And  the  general  rule  does  not  prevail  if  the  will  clearly  discloses  that 
the  testator  intended  that  the  gifts  to  his  wife  should  not  have  a  pref- 
erence over  other  bequests.  The  burden  will  be  on  the  executor  to 
show,  from  the  terms  of  the  will,  that  a  preference  is  forbidden.  The 
presumption  favors  the  widow's  claim.  The  intention  of  the  testator, 
as  found  in  the  will,  is  a  part  of  the  contract  made  with  the  widow,  and, 
if  she  accepts  the  provisions  of  the  will,  she  does  so  voluntarily,  and 
abides  the  consequences. 

The  internal  evidence  of  the  will,  in  the  present  instance,  does  not 
repel,  but  favors,  the  widow's  contention.  It  discloses  that  the  testa- 
tor, having  no  child,  had  great  affection  for  his  wife,  providing  in  dif- 
ferent ways  in  his  bequests  for  her  protection.  The  evidence  is  con- 
clusive that  he  believed  his  estate  would  easily  bear  all  the  burdens 
placed  by  him  upon  it.  He  must  have  assumed  that  the  annuity  to 
his  wife  would  be  needed  by  her,  to  sustain  the  equipments  of  house- 
keeping given  her,  including  the  support  of  horses  and  carriages  pro- 
vided for  her  use.  He  makes  the  payment  of  his  wife's  annuity  a 
prior  claim  to  all  other  bequests.  The  very  relation  of  husband  and 
wife  creates  a  strong  presumption  in  her  behalf,  when  we  consider  that, 
after  the  bounties  to  her  are  paid,  distant  relatives,  if  not  strangers, 
are  provided  for. 

We, think  that  the  will,  as  a  whole,  though  not  by  express  terms,  by 
implication,  indicates  preference  in  the  devises  and  bequests  to  the  wife, 
and  struggles  to  utter  it.  There  is  a  clause  in  the  will  which,  if  stand- 
ing alone,  might  seem  to  look  in  a  contrary  direction,  and  that  is  the 
declaration  of  the  testator  that  the  annuity  is  to  be  paid  from  the 
earnings  of  his  individual  and  partnership  property.  We  think  the 
idea  of  the  testator  in  this  clause  was  that  he  was  enlarging,  rather 
than  limiting,  the  funds  out  of  which  t^e  annuity  might  be  paid.  He 
devotes  for  the  purpose  the  earnings  of  all  his  properties.  He  ex- 
presses no  limitation  or  condition.    The  gift  is  unconditional  and  ab- 


682  PROBATE  AND    ADMINISTRATION.  (Part   3 

solute,  although,  as  is  often  the  case,  he  overestimates  the  sources  of 
supply  which  were  to  assure  its  payment.  The  sources  indicated  turn- 
ing- out  to  be  insufficient,  others  must  be  taken  to  supply  the  deficiency. 
It  is  a  demonstrative  legacy,  not  lost  because  of  the  nonexistence  of 
the  property  specially  pointed  out  as  a  means  of  satisfying  it. 

A  case  very  like  this  strongly  sustains  this  conclusion.  Smith  v. 
Fellows,  131  Mass.  20.  The  following  additional  references  may  be 
profitably  consulted  upon  the  general  questions  of  the  case :  Heath  v. 
Dendy,  1  Russ.  543 ;  Wells  v.  Borwick,  17  Ch.  Div.  798 ;  Potter  v. 
Brown,  11  R.  I.  232;  McLean  v.  Robertson,  126  Mass.  537;  3  Rom. 
Eq.  Jur.  §  1142,  note,  and  cases;  Schouler,  Ex'rs,  §  490,  and  cases  in 
note.     *     *     * 

Bill  sustained.** 


SECTION  3.— THE  RETAINER  AND  REFUNDING  OF  LEGA- 
CIES AND  DISTRIBUTIVE  SHARES 


ANONYMOUS. 
(High  Court  of  Chancery,  1718.    1  P.  Williams,  495.) 

In  this  case  (int.  al.)  it  was  said  by  Sir  Joseph  Jekyll,  Master  of 
the  Rolls,  that  as  all  legatees  are  on  a  deficiency  of  assets  to  be  paid 
in  proportion,  so  if  the  executor  pays  one  of  the  legatees,  yet  the  rest 

2  2  See  In  re  Wedmore  [1907]  2  Ch.  277;  In  re  Woodbury's  Estate,  40  Misc. 
Rep.  143,  81  N.  Y.  Supp.  503  (1903).  Compare  In  re  Brown,  42  Misc.  Rep.  444, 
87  N.  Y.  Supp.  247  (1904).  In  In  re  Woodbury's  Estate,  supra,  the  court  said: 
"The  law  is  well  settled  that  where  a  legacy  is  given  in  consideration  of  the 
relinquishment  by  the  legatee  of  some  subsisting  right  or  interest— as  to  a 
creditor  in  satisfaction  of  a  debt  or  to  a  wife  in  lieu  of  dower— such  legacy 
is  entitled  to  priority  over  general  legacies,  which  are  mere  bounties,  for  in 
such  cases  the  legatee  stands  in  the  situation  of  a  purchaser  and  not  a  mere 
volunteer.  Such  is  the  rule,  though  the  value  of  the  legacy  greatly  exceeds  the 
value  of  the  rights  relinquished." 

In  Faruam  v.  Bascom,  122  Mass.  282  (1877),  the  testatrix  left  no  residue  and 
insufficient  property  to  pay  the  debts  and  satisfy  the  specific  legacies  and 
devises.  It  was  held  that  the  specific  legacies  and  devises  must  be  charged 
with  the  debts  in  proportion  to  their  respective  values,  with  the  sole  excep- 
tion that  testatrix's  husband,  by  assenting  to  the  will  and  relinquishing  his 
right  to  one-half  of  the  personal  property,  became  a  purchaser  of  the  devise 
of  a  life  estate  to  him ;  hence  that  life  estate  could  be  resorted  to  only  after 
the  other  devises  and  the  legacies  were  exhausted.  But  under  the  California 
statute  land  devised  in  satisfaction  of  a  debt  less  in  amount  than  the  value  of 
the  devise  must  contribute  to  the  payment  of  debts  the  same  as  other  devised, 
lands.  In  re  Thayer's  Estate,  142  Cal.  453,  76  Pac.  41  (1904).  See.  also,  Mat- 
thews V.  Targarona,  104  INId.  442,  65  Atl.  60  (1906).  On  contribution  by  leg- 
atees and  devisees  to  make  up  a  loss  to  some  of  their  number  caused  by  the 
widow  electing  to  take  her  distributive  share,  see  McGuire  v.  Luckey,  129 
Iowa,  5."9.  105  N.  W.  1004  (1900) ;  Lewis  v.  Sedgwick,  223  111.  213,  79  N.  B.  14 
(T.HK-.);  Kincaid  v.  Moore.  2:33  111.  584,  84  N.  E.  033  (1908).  On  the  effect  of 
the  death  of  the  widow  during  the  period  of  the  right  of  election  between 
dower  and  le^Kicy  in  lieu  of  dower,  see  2  L.  R.  A.  (N.  S.)  959,  note. 


Ch.    4)  PAYMENT  OF   LEGACIES  AND    SHARES.  683 

shall  make  him  refund  in  proportion;  nay,  if  one  of  the  legatees  gets 
a  decree  for  his  legacy,  and  is  paid,  and  afterwards  a  deficiency  hap- 
pens, the  legatee  who  recovered  shall  refund  notwithstandmg,  m  mii- 
tatiok  of  the  spiritual  court  where  a  legatee  recovering  his  legacy  is 
made  to  give  security  to  refund  in  proportion  if,  etc. 

But  if  the  executor  had  at  first  enough  to  pay  all  the  legacies,  and 
afterwards  by  his  wasting  the  assets  occasions  a  deficiency,  in  such 
case  the  legatee  who  has  recovered  his  legacy  shall  not  be  compelled 
to  refund,  but  shall  retain  the  advantage  of  his  legal  diligence,  which 
the  other  legatees  neglected  by  not  bringing  their  suit  m  time;  before 
the  wasting  by  the  executor;  whereas  if  the  other  legatees  had  com- 
menced their  suit  before  such  waste  committed,  they  might  have  met 
with  the  like  success,  et  vigilantibus  non  dormientibus  jura  subveniunt. 

This  case  I  put  to  Mr.  Vernon,  who  was  of  the  same  opinion. 

23  "There  is  a  distinction,  running  tlirough  tlie  cases,  between  an  original 
deficiencfofLLts  and  where  the  assets  were  sufficient,  but  had  been  wasted 

bfthrelecut??'  in'the  former  case,  a  legatee.  -^o^f^^.J^^f^eCer 'ca'se'he 
his  Dronortion,  under  the  deficiency,  must  refund;  but  m  the  latter  case  ne 
is  nJt  obHged  to  for  he  has  received  no  more  than  what  was  due  to  him.  and 
The  othei  legatees  must  look  to  the  executor.  The  legatee  who  has  beeii  paid^ 
shall  retain  the  advantage  of  his  legal  diligence.  This  rule  was  so  laid  do^^n 
bv  Sir  JosVh  Jekyll,  in  1  P.  Wms.  495  (Anon.);  but  it  does  not  apply  where 
fcfelitoi  instead' of  a  legatee,  is  in  questh^n.  On  a  waste  ^7  the  executor 
a  legatee  who  has  been  paid,  must  refund  m  behalf  of  a  creditor.  Ejie, 
Chief  Baron,  in  Hardwicke  v.  Mynd,  1  Anst.  112;  Anon.,  1  Vers.  1G2.  But  the 
authorSes  stop  here;  and  the  case  of  Walcott  v.  Hall  f  Bro.  30o  as  such  a 
clear  and  solemn  adjudication  on  this  point  as  to  place  it  ^eyoiKl  all  tu  thei 
controversy.  There  was  a  legacy,  in  that  case,  of  £50  given  to  the  Plai  itt 
nnrl  navabie  at  the  age  of  21,  and  the  interest,  in  the  meantime,  to  be  applied 
?oifsmSn\enVnce.''Th?  residue  of  the  personal  estate  was  given  to  the  de- 
fendants. The  executor  retained  the  legacy  for  the  plaintiff,  and  paid  over 
the  residue  to  the  residuary  legatees,  and  then  became  a  bankrupt.  Uu  a 
bm  melagains  the  executor  and  the  residuary  legatees,  Lord  Kenyon,  who 
was  then  Master  of  the  Rolls,  declared  that  the  residuary  legatees  were  not 
liable  for  they  had  received  no  more  than  they  were  entitled  to,  and  the  party 
must  rest  on^he  devastavit,  and  he  dismissed  tbe  bill."  Chancellor  Kent,  m 
Lupton  V.  Lupton,  2  Johns.  Ch.  (N.  Y.)  614,  626,  627  (1817).    ^     ^       ^ 

That  even  the  residuary  legatee  need  not  refund  when  he  has  been  Pa id 
out  of  a  sufficiency  of  assets  and  there  is  a  subsequent  c  evas  avi  by  the  ex- 
ao^^fr,r  <?pp  also  Peterson  V.  Peterson,  L.  R.  3  Eq.  Ill  (1866);  in  le  Lepme. 
fl89°  'l  S  ^lo-  DeSe?e  V  Scranton  8  Ga.  43  (1S50).  But  in  Buffalo  Trust 
Co  V  Leonard  154  N.  Y.  141,  145-147,  47  N.  E.  966.  967  (1897)  Gray  J.,  for 
the  court  said  that  if  the  residuaiy  legatee,  without  having  the  estate  set- 
fed  up  and  the  residue  judicially  ascertained,  chose  to  demand  and  receive 
moneys  from  the  executor,  "he  took  them  with  all  the  risks  attending  such 
remJture  payment" ;  that  while,  as  between  general  or  specific  legatees,  the 
ruL  stated  in  the  anonymous  case,  supra,  was  correct  "where  the  case  is  be- 
tween a  general  legatee  and  the  residuary  legatee,  I  can  imagine  of  no  de- 
fense to  the  latter's  liability  to  refund  in  case  of  a  premature  Pay^ent  of 
mSneys  where  the  former  is  without  fault  in  the  matter,  and  I  certainly  know 
S  no  rui^  which  would  impute  to  an  infant  legatee  the  fault  of  his  guardian. 
The  resTdurry  legatee  is  entitled  to  nothing  until  all  the  debts  and  other  leg- 
acies are  paid  "  Although  the  executor  received  into  his  possession  moneys  to 
an  amiuut  more  than  sufficient  to  pay  the  specific  legacies  and  to  leave  a 
surplus  gi-eater  than  was  in  fact  received  by  Leonard,  the  residuary  legatee 
n54  N  Y  143  47  N.  E.  966),  although  the  executor  was  found  to  have  been 
financially  responsible  from  the  time  of  his  appointment  up  to  about  the  time 
he  absconded  (154  N.  Y.  144,  47  N.  E.  966),  and  although  the  decision  m  ^\al- 


684  PEOBATB  AND    ADMINISTRATION,  (Part   3 

DAVIS  V.  NEWMAN. 
(Supreme  Court  of  Appeals  of  Virginia,  1844.    2  Rob.  664,  40  Am.  Dec.  764.) 

Allen,  J.^*  The  testator,  after  making  large  specific  bequests,  di- 
rected the  residue  of  his  estate  to  be  divided  into  six  parts,  of  which 
the  executor  was  to  have  one,  and  the  remaining  five  were  divided 
among  his  children  a:nd  grandchildren.  He  owed  no  debts,  and  the 
executor  proceeded  to  make  sundry  payments  to  the  five  legatees.  The 
payments  were  voluntary;  but,  as  it  is  alleged,  were  made  under  a 
mistake  of  fact  as  to  the  value  of  the  assets.  When  the  money  was 
paid,  all  parties  supposed  that  a  bond  given  by  Thomas  Macon  to  the 
testator  in  his  lifetime  for  a  large  amount,  was  good  and  would  be 
collected;  and  the  executor,  in  settling  with  the  legatees,  acted  under 
that  impression.  The  bond  has  turned  out  to  be  unavailing.  Macon, 
though  in  the  possession  of  an  immense  estate  at  the  testator's  death, 
was  in  truth  greatly  embarrassed,  and  subsequently  gave  deeds  of 
trust  which  exhausted  all  his  property.  There  being  no  creditors  of 
the  testator  the  executor  now  seeks  to  recover  back  for  his  own  benefit 
the  sums  overpaid  to  the  legatees. 

In  1  Roper  on  Legacies,  315,  it  is  said  to  be  a  rule  in  equity,  to  pre- 
sume, when  an  executor  voluntarily  pays  one  or  more  legacies,  that  he 
has  received  sufficient  assets  to  discharge  the  rest;  and  although  the 
fact  be  otherwise,  not  to  admit  evidence  to  that  effect.  In  such  cases, 
therefore,  the  executor  will  be  under  the  necessity  to  make  up  the  de- 
ficiency with  his  own  money,  since  he  will  not  be  permitted  to  institute 
proceedings  (except  in  particular  instances)  against  the  legatees  so 
paid,  to  oblige  them  to  refund.  See,  also,  2  Lomax's  Digest,  173 ;  2 
Williams  on  Ex'rs,  892 ;  1  Eq.  Ca.  Abr.  239.  The  cases  referred  to 
by  Roper  of  Noel  v.  Robinson,  1  Vern.  94,  Newman  v.  Barton,  2  Vern. 
205,  Coppin  v.  Coppin,  2  P.  Wms.  292,  and  Orr  v.  Kaines,  2  Ves.  Sr. 
194,  seem  to  me  fully  to  sustain  the  position  that  in  England,  where 
the  executor  has  made  a  voluntary  payment,  he  cannot  compel  the  lega- 
tee to  refund :  though  there  may  be  good  reason  to  doubt  whether  they 
fully  justify  the  position  that  such  payment  is  an  admission  of  assets 
sufficient  to  pay  all  the  rest  of  the  legatees,  and  that,  though  the  fact 
may  be  otherwise,  equity  will  not  admit  evidence  to  that  effect.  The 
authority  for  this  proposition  is  the  opinion  of  Sir  John  Strange,  Mas- 
ter of  the  Rolls,  in  2  Ves.  Sr.  194.  That  opinion  has  been  reviewed  by 
President  Tucker  in  Gallego's  Ex'rs  v.  Attorney  General,  3  Leigh,  488, 

cott  V.  Hall,  supra,  was  approved  (154  N.  T.  146.  47  N.  E.  967),  the  last  para- 
graph of  the  opinion  asserted  that  "in  the  present  case,  for  the  defendant 
lyconard.  In  the  absence  of  a  judicial  settlement  of  the  accounts  of  the  exec- 
utor, to  have  received  a  voluntary  payment  of  moneys,  was  to  subject  him- 
self to  the  same  liability  to  refund  as  would  exist  if  it  was  shown  that  he 
received  tiie  money  with  knowledge  that  the  other  legacies  had  not  been  paid 
or  provided  for."  154  N.  Y.  147.  47  N.  E.  967. 
»*  Part  only  of  the  opinion  is  given. 


Ch.   4)  PAYMENT  OF   LEGACIES  AND    SHARES.  685 

24  Am.  Dec.  650,  and  he  there  shows,  that  Sir  John  Strange  merely 
says  such  payment  furnishes  a  presumption  of  the  sufficiency  of  assets 
to  pay  the  rest  of  the  legacies,  but  does  not  say  the  presumption  is  con- 
clusive. In  the  opinion  of  President  Tucker,  such  presumptions,  like 
all  others,  are  liable  to  be  rebutted,  and  although  an  executor  may  have 
been  willing  to  encounter  the  hazard  of  paying  one,  it  furnishes  no 
reason  for  being  compelled  to  pay  the  rest  out  of  his  own  pocket. 

I  should  not  consider  such  a  payment  to  one  as  conclusively  estab- 
lishing the  executor's  liability  to  all  the  rest,  although  the  assets  were 
deficient  originally;  because  that  would  conflict  with  the  spirit  of  our 
laws  and  adjudications.  In  England,  the  executor  is  personally  bound 
if  he  fails  to  plead.  A  judgment  against  him  on  any  plea  except  plene 
administravit,  or  a  plea  admitting  assets  to  a  sum  certain  and  riens 
ultra,  is  conclusive  on  him  that  he  has  assets  to  satisfy  such  judgment. 
Our  statute  (1  R.  C.  p.  384,  c.  104,  §  36)  has  altered  the  law  in  this 
respect,  and  a  failure  to  plead,  or  mispleading,  subjects  him  to  no  per- 
sonal responsibility.  To  hold  that  a  voluntary  payment  to  one  legatee 
is  an  implied  admission  of  assets  sufficient  to  pay  all,  would  be  giving 
to  such  implied  admission  in  pais  an  effect  to  which  the  statute  has 
declared  an  admission  on  record  shall  not  be  entitled.  For,  by  any 
other  than  the  plea  of  plene  administravit,  he  was  held  to  admit  assets. 
1  Wms.  Saund.  335,  note  10. 

But  as  between  the  executor  and  the  legatee  who  has  been  paid,  the 
cases  are  decisive  that  he  shall  not  recover  back  the  payment  if  volun- 
tarily made.  And  no  case  has  been  cited  which  shews  that  such  a  bill 
has  ever  been  sustained  in  England.  It  is  certainly  not  shewn  by  those 
cited  from  1  P.  Wms.  495,  and  2  P.  Wms.  447.  In  Virginia  the  ques- 
tion has  never  arisen.  Burnley  v.  Lambert,  1  Wash.  308,  was  a  suit 
by  the  legatee  to  recover  slaves  bequeathed  to  him,  and  which  had  been 
seized  and  sold  on  an  execution  against  the  executor  after  he  had  as- 
sented to  the  legacy.  Judge  Pendleton,  after  deciding  that  the  assent 
of  the  executor  to  the  legacy  vested  the  legal  title  in  the  legatee,  which 
could  not  be  divested  at  law  by  the  creditor,  remarks  that  the  creditor 
is  not  without  remedy ;  he  may  follow  the  assets  in  the  hands  of  the 
legatee,  or  proceed  against  the  executors,  in  which  case  the  executors 
have  their  remedy  in  equity  to  compel  the  legatee  to  refund.  It  does 
not  appear  from  the  report,  whether  the  debt  was  one  of  which  the 
executor  had  no  previous  notice;  and  it  was  unnecessary  for'the  court 
to  enquire  into  that  matter.  If  it  was  a  debt  of  which  he  had  no  notice 
before  paying  away  the  assets  to  legatees,  he  had  a  right  to  compel  the 
legatees  to  refund.  Nelthrop  v.  Biscoe,  1  Ch.  Cas.  135.  And  as  the 
assets  are  always  bound  to  the  creditor,  and  he  may  pursue  them  in 
the  hands  of  the  legatee  even  though  the  testator's  effects  would  have 
been  sufficient  to  pay  both  debts  and  legacies  (1  Vem.  162),  there 
might  be  good  reason  for  holding  that  where  the  executor  paid  a  lega- 
cy with  notice  of  a  debt,  believing  the  assets  to  be  sufficient,  and  they 
proved  insufficient  to  pay  both,  he  should  be  permitted  to  compel  the 


686  PROBATE   AND    ADMINISTRATION.  (Part    3 

legatee  to  refund.  The  legatee  takes  subject  to  the  liability  of  being 
compelled  to  refund  at  the  suit  of  a  creditor.  And  where  the  executor 
has  not  been  culpable,  and  is  compelled  to  pay  the  debt,  it  seems  to  me 
he  should  be  substituted  to  the  rights  of  the  creditor  he  has  paid.  So 
far  the  strict  rule  of  the  English  courts  might  properly  be  relaxed  in 
conformity  with  the  more  liberal  spirit  of  our  legislation  in  regard  to 
executors,  and  with  the  principles  which  led  the  court  to  give  relief 
in  Miller's  Ex'rs  v.  Rice,  1  Rand.  438. 

Jones  V.  Williams,  2  Call,  102,  was  a  controversy  about  accounts, 
and  the  question  could  not  have  arisen ;  for  the  money  advanced  to  the 
distributee  was  advanced  as  a  loan,  to  be  returned  if  on  a  settlement  he 
was  not  entitled  to  it;  and  for  that  reason  the  executor  was  allowed 
interest  on  the  sum  decreed  to  him. 

Bowers'  Ex'r  v.  Glendening,  4  Munf.  219,  decides  merely  that  an 
executor  against  whom  a  creditor  obtains  a  decree  may  compel  the 
legatee  to  refund. 

In  Gallego's  Ex'rs  v.  Attorney  General,  3  Leigh,  450,  24  Am.  Dec. 
650,  it  was  decided  that  where  the  estate  proved  deficient  by  an  unex- 
pected depreciation  of  the  property  after  some  of  the  legatees  were 
fully  paid,  the  unpaid  legatees  have  a  right  to  look  to  the  executors 
for  their  ratable  proportions  of  the  fund,  and  are  not  bound  to  have 
recourse  to  the  legatees  who  were  fully  paid  to  compel  them  to  refund. 
In  England,  the  unsatisfied  legatee  cannot  maintain  a  suit  against  the 
legatee  fully  paid  to  compel  him  to  refund,  if  the  executor  is  solvent. 
Such  Judge  Tucker  lays  down  to  be  the  rule;  and  therefore,  though 
he  was  of  opinion  in  Gallego's  Ex'rs  v.  Attorney  General  that  the  ex- 
ecutors were  liable  only  for  the  ratable  proportion  of  the  legacy,  and 
not  for  the  whole,  upon  the  ground  that  payment  in  full  to  one  was 
an  admission  of  assets  sufficient  to  pay  all,  he  still  held,  that  as  the 
executors  were  quite  solvent,  the  legatees  had  no  right  to  call  upon 
those  paid  to  refund.  The  case  did  not  call  for  a  decision  on  this 
point,  and  the  other  judges  did  not  notice  it.  If,  as  I  conceive,  the 
executor  who  has  been  made  liable  at  the  suit  of  the  creditor  can  only 
be  permitted  to  compel  the  legatee,  whom  he  has  voluntarily  paid,  to 
refund,  by  substituting  him  to  the  rights  of  the  creditor,  who  could 
have  proceeded  in  the  first  instance  against  the  assets;  where  it  is 
shewn  that  no  such  original  right  to  charge  the  assets  exists,  there  is 
no  right- to  which  the  executor  can  be  substituted. 

But  even  if,  in  a  case  where  there  was  an  original  deficiency  of 
assets  (as  in  Gallego's  Ex'rs  v.  Attorney  General),  it  should  be  held 
that  the  executor,  having  through  mistake  paid  one  legatee  in  full,  and 
having  afterwards  been  compelled  to  pay  the  proportions  of  the  others 
out  of  his  own  pocket,  might  compel  the  legatee  overpaid  to  refund ; 
the  case  would  still  fall  short  of  that  under  consideration.  Here  the 
executor  has  not  been  called  upon  by  a  creditor  to  make  good  assets 
improperly  paid  away,  or  by  an  unpaid  legatee  to  pay  him  a  ratable 
proportion  of  his  legacy  out  of  his  own  pocket:  he  is  seeking  to  recover 


Ch.    4)  PAYMENT  OF   LEGACIES  AND    SHARES.  687 

for  his  own  benefit  alone.  To  sustain  his  claim  to  such  a  recovery 
would  be  against  the  whole  series  of  authorities  in  England,  commenc- 
ing at  an  early  period,  and  without  the  support  of  a  single  authority 
or  dictum  in  our  own  courts. 

It  is  the  duty  of  the  executor  to  make  himself  acquainted  with  the 
condition  of  the  estate.  The  means  are  in  his  own  hands,  and  if  he 
neglects  to  avail  himself  of  them  it  is  his  own  fault.  He  is  not  com- 
pelled to  pay  the  legatees  until  the  debts  are  discharged,  and  until  he 
has  ascertained  the  precise  extent  of  the  assets.  He  can  decline  pay- 
ing except  under  the  decree  of  a  court,  and  then  he  is  entitled  to  call 
upon  the  legatee  to  refund  if  the  estate  was  originally  deficient;  and 
he  may  with  us  always  require  a  refunding  bond.  If,  without  using 
any  of  these  precautions,  he  voluntarily  pays  the  legatee,  the  latter  has 
a  right  to  consider  the  money  as  his  own;  subject,  it  is  true,  to  be 
called  upon  to  refund  at  the  suit  of  creditors,  or  of  an  unpaid  legatee 
if  the  assets  were  originally  deficient.  But  these  are  contingencies  too 
remote  in  his  apprehension,  when  a  payment  has  been  made  to  him 
under  such  circumstances,  to  have  any  influence  on  his  conduct.  The 
hardship  of  the  case  is  greater  upon  the  legatee  than  the  executor.  He 
has  been  in  no  default.  No  duty  was  imposed  upon  him  to  examine 
into  the  state  and  condition  of  the  assets.  He  receives  what  a  payment 
under  such  circumstances  has  impressed  him  with  a  conviction  he  will 
never  be  called  upon  to  refund.  Such  unexpected  additions  to  men's 
fortunes  are  frequently  spent  without  much  consideration;  wasted  in 
the  gratification  of  some  want  to  which  the  legacy  has  given  birth,  or 
released  to  some  more  needy  relative.  It  would  be  the  grossest  in- 
justice, under  such  circumstances,  to  permit  the  executor,  who  had 
thus  misled  him  by  his  negligence  or  inattention  to  his  duties,  to  com- 
pel him  at  some  distant  day  to  refund  the  money.  The  case  of  a  lega- 
tee, and  as  between  him  and  the  executor,  seems  to  me  much  stronger 
than  the  cases  of  Brisbane  v.  Dacres,  5  Taunt.  144,  1  Eng.  C.  L.  Rep. 
43,  and  Skyring  v.  Greenwood,  4  Barn.  &  Cress.  281,  10  Eng.  C.  L. 
Rep.  335,  in  the  first  of  which  cases  Gibbs,  J.,  remarked,  that  he  who 
receives  money  so  paid  "has  a  right  to  consider  it  as  his  without  dis- 
pute ;  he  spends  it  in  confidence  that  it  is  his ;  and  it  would  be  most 
mischievous  and  unjust,  if  he  who  has  acquiesced  in  the  right  by  such 
voluntary  payment,  should  be  at  liberty,  at  any  time  within  the  statute 
of  limitations,  to  rip  up  the  matter  and  recover  back  the  money." 

The  only  modifications  of  the  general  rule  which  our  laws  seem  to 
call  for  are  those  already  indicated.  A  payment  to  one  in  full  shall 
not  be  construed  into  an  admission  of  assets  sufficient  to  pay  all.  It 
merely  furnishes  a  strong  presumption,  which  may  be  rebutted  by 
proof  of  an  original  deficiency.  And  in  all  cases  where  the  executor 
is  compelled  to  pay  a  creditor,  he  shall,  upon  the  principle  of  substitu- 
tion, have  the  right  to  compel  the  legatee  to  refund,  and  this  although 
he  had  notice  of  the  debt  at  the  time  of  payment,  unless  he  has  been 
guilty  of  culpable  neglect  of  his  duty  to  inform  himself  of  the  condi- 


638  PROBATE   AND    ADMINISTRATION.  (Part   3 

>.ion  of  the  estate.  But  where  he  has  not  been  subjected  to  liability 
at  the  suit  of  a  creditor,  he  shall  not  be  permitted  to  recover  back,  for 
his  own  benefit,  what  he  has  voluntarily  paid  to  the  legatee.  *  *  * 
Upon  the  whole  ♦  *  *  it  seems  to  me  that  both  the  rules  of  law 
and  the  particular  circumstances  of  this  case  should  preclude  his  re- 
covery.^' 

2  6  "In  England.  It  seems  to  be  settled  by  the  authorities,  a  legatee  Is  not 
bound  to  refund  at  the  suit  of  the  executor,  unless  the  payment  by  him  was 
compulsory,  or  unless  the  deficiency  was  created  by  debts,  which  did  not  ap- 
pear until  after  the  payment  of  the  legacy,  in  either  of  which  cases  the  executor 
might  compel  the  legatee  to  refund  the  excess  paid  on  the  legacy.  See  Toll. 
Ex'rs,  341;  2  Fonbl.  Eq.  376;  Coppin  v.  Coppin,  2  P.  Wms.  296;  Orr  v.  Kaines, 
2  Yes.  Sr.  194.  But  the  general  spirit  of  the  decisions  in  Vii-ginia  and  West 
Virginia  has  relaxed  much  of  the  severity  of  the  ancient  English  cases,  when 
no  fraud  or  misconduct  is  imputed  to  the  executor.  See  Jones'  Ex'r  v.  Wil- 
liams, 2  Call,  103,  top  page  86 ;  Burnley  v.  Lambert,  1  Wash.  (Va.)  312 ;  Gal- 
legoe's  Bx'rs  v.  Lambert  (Tucker's  opinion)  3  Leigh,  465  [24  Am.  Dec.  650]. 
I  am  therefore  of  the  opinion  that  there  is  no  inflexible  rule,  which  refuses  to 
an  executor  under  any  circumstances  the  right  to  recover  back  from  a  legatee 
an  excess  of  advancements  which  may  have  been  made  to  him,  even  when  the 
deficiency  was  created  by  debts  which  appeared  before  the  payment  of  the  leg- 
acy, and  the  payment  was  voluntary ;  but  in  such  case  the  executor  will  have 
to  make  a  very  strong  case  to  rebut  the  almost  conclusive  presumption  that 
he  had  a  sufficiency  of  assets  to  justify  the  payment  of  the  legacy,  which 
arises  from  the  mere  fact  that  he  has  paid  the  legacy.  As  an  instance,  where 
the  law  would  permit  an  executor  to  recover,  I  may  put  the  case  where  the 
assets  were  apparently  abundant  when  the  legacy  was  paid,  but  were  subse- 
quently rendered  deficient  by  a  general  and  destructive  fire.  See  Miller  v.  Rice, 
1  Rand.  (Va.)  438.  The  general  rule  is,  as  laid  down  in  English  cases  quoted 
[cited]  above,  and,  to  justify  a  departure  from  this  general  rule,  the  executor 
must  show  that  in  the  execution  of  the  will  he  has  done  everything  which  a 
prudent  man  ought  to  have  done,  and  has  done  nothing  that  a  cautious  man 
ought  not  to  have  done ;  and  it  will  not  suffice  to  show  that  he  has  been  guilty 
of  no  fraud  but  has  acted  bona  fide  and  with  honest  intentions.  That  the  Eng- 
lish rule  has  not  been  relaxed  in  Virginia  or  West  Virginia  beyond  what  is 
above  stated,  abundantly  appears  from  the  cases  of  Davis  v.  Newman,  2  Rob. 
(Va.)  664  [40  Am.  Dec.  764],  Nelson's  Ex'r  v.  Page,  7  Grat.  (Va.)  160,  Ander- 
son V.  Piercx  20  W.  Va.  282,  and  Shriver  v.  Garrison,  30  W.  Va.  456,  4  S.  E. 
660."  Green,  J.,  in  McEndree  v.  Morgan,  31  W.  Va.  621,  531,  532,  8  S.  B.  285, 
291  (1888). 

"The  claim  that  the  executor  makes  of  an  alleged  overpayment  by 
him  to  a  legatee  Is  a  matter,  so  far  as  a  recovery  thereof  by  the  executor 
is  concerned,  between  him  and  such  legatee.  In  his  accounting  the  execu- 
tor charges  himself  with  all  the  assets  of  the  estate  which  he  has  re- 
ceived, and  credits  himself  with  the  payment  of  such  items  as  he  thinks  are 
or  are  not  proper  charges  against  the  estate ;  and  unless  the  estate  were  lia- 
ble to  pay  any  particular  item,  it  should  not  be  allowed,  notwithstanding  the 
payment  had  been  made  by  the  executor.  ♦  •  ♦  An  overpayment  by  the 
executor  to  any  person  entitled  to  a  distributive  share  does  not  in  any  way 
diminish  the  amount  of  the  estate  which  the  law  says  is  in  the  executor's 
hands  for  distribution.  The  law  does  not  recognize  any  such  overpayment, 
and  does  not,  therefore,  permit  the  executor  to  credit  himself  with  the  amount 
of  the  excess.  In  legal  contemplation  the  sum  is  in  the  hands  of  the  executor 
as  assets  of  the  estate  which  he  must  pay  over  to  the  parties  entitled  there- 
to." Pec-kham.  J.,  in  Matter  of  Underbill,  117  N.  Y.  471,  474,  475,  22  N.  E. 
1120.  1121  (TRSD).  See,  also,  Matter  of  Robertson,  51  App.  Div.  117,  64  N.  Y. 
Supp.  3S5  (1900). 


Ch.    4)  PAYMENT  OF  LEGACIBS  AND    SHARB8.  689 

BUCHANAN  v.  PUE. 
(Court  of  Appeals  of  Maryland,  1847.     6  Gill,  112.) 

Martin,  J.^*  This  is  an  appeal  from  a  decree  of  the  chancellor,,  of 
the  1st  June,  1846,  by  which  it  was  ordered  that  the  specific  legacy, 
which  had  been  delivered  to  the  defendant  by  the  complainant,  should 
be  returned  to  the  complainant,  to  be  applied  by  him  as  the  executor 
of  Edward  Buchanan,  in  satisfaction  of  the  testator's  debts.     *     *     * 

With  respect  to  the  second  point  made  by  the  counsel  for  the  appel- 
lant, we  are  of  opinion  there  is  no  circumstance  in  this  case  which  pre- 
cludes the  appellee  from  reclaiming  this  legacy  in  a  court  of  equity. 

It  has  not  been  pretended  that  the  insufficiency  of  the  assets  to  satis- 
fy the  debts  of  the  testator  has  been  caused  by  the  fraud  or  misconduct 
of  the  executor.  The  fund  created  by  the  sale  of  the  farm  in  Balti- 
more county  has  been  faithfully  applied  to  the  purposes  designated  by 
the  will  of  Edward  Buchanan ;  and  after  having  been  exhausted  in 
the  payment  of  his  debts,  there  still  remains  outstanding  debts  amount- 
ing to  the  sum  of  nineteen  hundred  dollars,  in  addition  to  the  sum  of 
three  hundred  and  forty-five  dollars  and  thirty-eight  cents,  due  to  the 
executor  for  disbursements  made,  and  debts  paid  by  him,  on  account 
of  the  estate.  And,  we  think,  that  as  it  is  evident  in  this  case  that  the 
legacy  was  delivered  by  the  appellee  to  the  appellant  upon  the  entire 
confidence,  sincerely  entertained,  that  the  assets  would  be  sufficient 
for  the  payments  of  the  debts  of  the  testator,  but  have  proved  to  be 
inadequate,  without  the  fault  of  the  appellee,  he  was  entitled  to  coerce 
a  return  of  it,  through  the  instrumentality  of  a  court  of  equity.  Upon 
this  subject,  there  appears  to  have  been  some  contrariety  of  opinion  in 
the  early  cases,  but  the  principle  we  have  announced  will  be  found  to 
be  sustained  by  the  weight  of  authority,  both  in  England  and  in  this 
country. 

In  the  case  of  Davis  v.  Davis,  reported  in  8  Viner  Abrgt.  423,  it 
was  held : 

"That  an  executor  may  institute  a  suit  against  a  legatee,  to  refund 
a  legacy  voluntarily  paid,  as  well  as  a  creditor;  and  for  this  reason, 
an  executor,  paying  a  debt  of  the  testator  out  of  his  own  pocket,  stands 
in  the  creditor's  place,  and  has  the  same  equity  against  the  legatee  to 
compel  him  to  refund." 

In  Hawkins  v.  Day,  decided  in  1753,  Ambler's  Rep.  160,  Lord  Hard- 
wicke  said: 

"The  rule  in  this  court,  to  grant  prohibitions  in  case  legatees  sue  in 
the  spiritual  courts,  and  refuse  to  give  security,  is  out  of  use;  but  the 
court  will  decnee  a  legatee  to  refund." 

In  Edwards  v.  Freeman,  2  P.  Wms.  446,  Lord  Chief  Justice  Ray- 
mond declared : 

2  6  The  statement  of  facts  is  omitted,  and  part  only  of  the  opinion  is  given. 
Cost.  Wills — 44 


690  PROBATE   AND    ADMINISTRATION.  (Part    3 

"That  if  an  executor  pays  a  legacy  on  supposition  that  there  are 
assets  to  pay  all  the  other  legacies,  and  there  happens  a  deficiency,  the 
court  will  make  the  legatee,  who  is  paid  his  full  legacy,  refund." 

The  principle  thus  announced  in  the  cases  to  which  we  have  referred 
was  recognized  by  Lord  Alvanley,  in  the  case  of  Johnson  v.  Johnson, 
3  Bos.  &  Pul.  169,  by  Chief  Justice  Marshall,  in  Riddle  v.  Mande- 
ville,  5  Cranch,  330,  3  L.  Ed.  11-1,  and  has  been  directly  adjudicated 
by  the  Supreme  Court  of  New  Jersey,  in  the  case  of  Harris  v.  White, 
5  N.  J.  Law,  425,  and  by  the  presiding  judge  of  the  Court  of  Appeals 
of  Virginia,  in  Gallego's  Ex'rs  v.  Attorney  General,  3  Leigh,  489,  24 
Am.  Dec.  650.  And  Judge  Story,  when  treating  of  this  subject  in  the 
first  volume  of  his  Equity  Jurisprudence    (section  90),  says: 

"In  the  course  of  the  administration  of  estates,  executors  and  ad- 
ministrators may  often  pay  debts  and  legacies  upon  the  entire  con- 
fidence, that  the  assets  are  sufficient  for  all  purposes.  It  may  turn 
out  from  unexpected  circumstances,  or  from  debts  and  claims  made 
known  at  a  subsequent  time,  that  there  is  a  deficiency  of  assets.  Un- 
der such  circumstances,  they  may  be  entitled  to  no  relief  at  law.  But 
in  a  court  of  equity,  if  they  have  acted  with  good  faith,  and  with  due 
caution,  they  will  be  clearly  entitled  to  it,  upon  the  ground  that  they 
will  be  otherwise  innocently  subject  to  an  unjust  loss,  from  what  the 
law  itself  deems  an  accident." 

The  same  doctrine  is  maintained  in  Walker  v.  Hill,  17  Mass.  385. 

We  place  the  right  of  the  appellee  to  maintain  this  suit,  upon  the 
plain  and  acknowledged  principle  "that  the  payment  of  the  legacy  was 
made  on  a  mistaken  ground,  with  respect  to  the  facts  of  the  case,  and 
that  therefore  it  would  be  unjust  and  inequitable  in  the  legatee  to 
withhold  it."    Hutchins  V.  Hope,  12  Gill   &  J.  (Md.)  256.     *     *     * 

Decree  affirmed.^' 

27  See  Sellers  v.  Smith,  11  Ala.  264  (1847) ;  Clifton  v.  Clifton,  54  Fla.  .535, 
45  South.  458  (1907).  Where  persons  eutitlerl  to  a  distrilmtive  share  of  an 
intestate's  estate  are  known  to  exist,  but  through  error  of  law  the  adminis- 
trator distributes  the  whole  estate  to  others,  or  where  through  error  of  law 
the  personal  representative  pays  to  some  one  not  entitled  to  take,  the  personal 
representative  can  recover  the  money  mistakenly  paid  only  if  in  the  given 
jurisdiction  money  paid  with  full  knowledge  of  the  facts,  but  under  mis- 
take of  law,  may  be  recovered.  Recovery  was  denied  in  Phillips  v.  McConica, 
.59  Ohio  St.  1,  51  N.  E.  445.  69  Am.  St.  Rep.  753  (1898) ;  Shriver  v.  Garrison, 
.30  W  Va.  456.  4  S.  E.  660  (1887),  and  Scott  v.  Ford,  75  Or.  531,  78  Pac. 
742,  80  Pac.  899,  68  L.  R.  A.  469  (190.5).  Compare  Rogers  v.  Ingham,  3 
ChD.  351  (1876).  Recovery  was  allowed  in  Culbreath  v.  Culbreath,  7  Ga.  64, 
50  Am.  Dec.  375  (1849).  See,  also,  Northrop  v.  Graves,  19  Conn.  548,  50  Am. 
Dec.  264  (1849).  E\^eu  where  recovery  may  be  had  for  mistake  of  law  alone 
the  defendant's  innocent  change  of  position  may  be  a  defense.  Brooking  v. 
Farmers'  Bank,  83  Ky.  431  (1885).  And  where  recovery  may-  not  be  had  be- 
cause the  mistake  is  one  of  law  only,  the  mistaken  payment  may  be  applied  in 
extinguishment  or  reduction  of  a  debt  or  liability  actually  duo  and  omug. 
Hempliill  v.  :Moody,  64  Ala.  468  (1879).  In  Williams  v.  McCardell,  14  S.  C. 
219  (ISSO),  a  distributee,  who  had  been  paid  by  the  administrator  out  of  the 
personal  estate  more  than  his  total  share  of  the  real  and  personal  estate  of 
the  intestate  amounted  to,  died,  and  the  other  distributees  sought  on  parti- 


Ch,   4)  PAYMENT  OF   LEGACIES  AND    SHARES.  691 

CLARK  V.  WILLIAMS. 
(Supreme  Court  of  North  Carolina,  1S74.     70  N.  C.  679.) 

ReadE,  J.^®  The  plaintiff,  who  was  one  of  two  sureties  to  the  ad- 
ministration bond,  and  paid  one-half  of  a  debt  recovered  against  the 
insolvent  administrator,  is  not  subrogated  to  the  rights  of  the  creditor, 
whose  debt  he  paid,  but  to  the  rights  of  the  administrator,  for  whom 
he  paid  it.  It  follows,  that  if  the  administrator  had  no  rights,  the 
plaintiff,  his  surety,  has  none.  It  becomes  important,  therefore,  to  de- 
termine the  rights  of  the  administrator. 

The  administrator  delivered  over  the  property  of  the  estate  to  the 
distributees,  leaving  a  debt  against  the  estate  unpaid,  and  which  was 
subsequently  recovered  against  him.  Can  he  recover  back  of  the  dib- 
tributees?  It  is  settled  that  he  cannot.  Donnell  v.  Cooke,  63  N.  C. 
227.  To  this  general  rule  there  is  the  exception  that,  if  he  can  show 
special  circumstances  to  rebut  the  idea  of  negligence,  he  may  recover 
back.  Id.  The  special  circumstance  relied  on  in  this  case  is  that  the 
intestate  was  not  principal  in  the  debt  against  the  estate,  but  was  only 
the  surety;  and  the  principal  was,  beyond  all  question,  solvent,  and 
able  to  pay,  and  was  rendered  insolvent  by  the  unforeseen  accident  of 
the  emancipation  of  his  slaves  so  that  it  would  have  been  overscrupu- 
lousness,  if  not  dov/nright  wrong,  for  the  administrator  to  hold  the  es- 
tate in  his  hands  to  pay  a  surety  debt,  which  there  seemed  to  be  not 
the  slightest  probability  that  he  would  have  to  pay. 

tion  to  appropriate,  to  the  exclusion  of  his  creditors,  his  Interest  in  the  in- 
herited real  estate.  In  was  held,  however,  that  the  claim  for  repayment  of 
the  excess  whicl!  he  received  from  the  ancestor's  estate  had  no  priority  over 
his  other  debts,  even  with  respect  to  the  property  inherited  from  the  ances- 
tor.    Compare  4  L.  R.  A.  (N.  S.)  189,  note. 

"It  is  well  settled  that  a  legatee,  who  has  received  no  more  than  his  legal 
share  of  the  estate,  is  not  liable  to  "account  to  another  legatee,  who  by  reason 
of  a  devastavit  of  the  executor  fails  to  receive  his  full  share.  His  remedy  is 
against  the  executor.  The  one  who  receives  but  what  belonged  to  him  has 
done  the  other  no  wrong.  There  is  a  line  of  cases  which  hold  that  if,  by  mis- 
take as  to  the  condition  of  the  estate,  the  executor  pay  to  one  legatee  more 
than  his  share,  or  if  by  some  unforeseen  cause,  for  which  the  executor  is  not 
responsible  and  could  not  have  reasonably  anticipated,  it  turns  out  upon  a 
final  settlement  that  he  has  overpaid  some  of  the  legatees,  he,  after  making 
good  to  the  other  legatees  their  share,  may  have  relief  in  equity  against  the 
overpaid  legatees.  But  the  court  will  grant  such  relief  only  when  it  clearly 
appears  that  the  executor  was  unable  to  foresee  the  'peculiar  circumstances' 
by  reason  of  which  the  mistake  occurred.  Alexander  v.  Fox,  55  N.  C.  106  [G2 
Am.  Dec.  211];  Lambert  v.  Hobson,  56  N.  C.  424.  It  may  be  that,  if  the 
executor  is  insolvent,  and  the  legatee  has  suffered  loss  uaider  circumstances 
which  would  have  entitled  the  executor  to  relief  in  equity,  such  legatee  would 
be  subrogated  to  the  rights  of  the  executor.  No  such  condition  is  shown  here, 
for  the  reason  that  there  were  ample  resources  of  the  estate  from  which  equal- 
ity could  have  been  secured,  and  that,  with  the  concurrence  of  the  plaintiffs, 
they  have  been  distributed."  Conner,  J.,  in  Sprinkle  v.  Holton,  146  N.  C.  258, 
264,  265,  59  S.  E.  680,  682  (1907).  On  the  refunding  of  legacies,  see  4  Prob. 
Rep.  Ann.  422,  note. 

2  8  The  statement  of  facts  is  omitted,  and  part  only  of  the  opinion  is  given. 


692  PROBATE  AND    ADMINISTRATION.  (Part   3 

The  administrator,  under  these  circumstances,  being  entitled  to  re- 
cover back  of  the  distributees,  and  the  plaintiff  surety  being  substitut- 
ed in  his  place,  the  question  is :  In  what  proportion  must  the  distribu- 
tees contribute?  If  they  had  executed  the  usual  refunding  bonds  with 
sureties,  they  would  have  been  conditioned,  that  each  distributee  should 
contribute  his  "ratable  part."  It  was  the  privilege  of  the  administrator 
to  require  such  bonds.  As  he  did  not  do  so,  their  liability  to  him  is 
each  for  his  ratable  part  only.  And  the  solvent  ones  are  not  liable  to 
pay  the  parts  of  the  insolvent. 

The  judgment  below  must  be  modified,  so  as  to  give  the  plaintiff 
judgment  here  against  Williams  for  one-half  of  his  claim,  and  judg- 
ment against  each  of  the  other  defendants  for  one-eight  of  the  other 
half.     *     *     * 

Per  Curiam.    Judgment  modified.'^' 


ZOLLICKOFFER  v.  SETH. 

(Court  of  Appeals  of  Maryland,  1876.,    44  Md.  359.) 

Alvey,  J.^°  The  questions  in  this  case  arise  upon  a  demurrer  to  the 
complainant's  bill,  and  by  the  demurrer  the  facts  alleged  are  admitted 
to  be  true.  If,  therefore,  the  bill  discloses  a  case  to  entitle  the  com- 
plainant to  rehef,  the  decree  appealed  from  must  be  reversed,  and  the 
cause  remanded  for  further  proceedings  in  the  court  below. 

The  right  of  the  complainant  to  recover  from  the  defendants,  or  any 
of  them,  will  depend  upon  the  decision  of  the  two  following  proposi- 
tions : 

(1)  Whether,  by  reason  of  the  death  of  McHenry  Grafton,  and  the 
full  administration  of  his  estate  by  his  personal  representative,  his  ob- 
ligation upon  the  administration  bond  of  Alexander  H.  Seth  and  John 
M.  Frazier,  in  which  Coates  and  Grafton  were  co-sureties,  ceased  and 
became  extinguished,  not  only  as  against  his  personal  representative, 
but  also  as  against  his  legatees  and  distributees,  who  have  received  his 
personal  estate  upon  final  administration  by  the  executor. 

(2)  The  complainant,  as  executor  of  Coates,  having  paid  the  lega- 
cies under  Robert  Seth's  will,  after  the  administration  and  distribution 
of  the  personal  estate  of  McHenry  Grafton,  Whether  he,  the  com- 
plainant, is  entitled  to  relief  for  contribution  as  against  the  legatees 
or  distributees  of  the  estate  of  Grafton,  in  respect  to  the  distributions 
made  to  them  under  the  will  of  their  testator? 

1.  The  administration  bond,  upon  which  Coates  and  Grafton  were 
co-sureties,  was  given  in  1865.  Alexander  H.  Seth,  the  surviving  ad- 
ministrator, with  the  will  annexed,  of  Robert  Seth,  is  and  has  been  for 

28  But  see  McClung  v.  Sieg,  54  W.  Va.  467,  480,  46  S.  B.  210,  66  L.  R.  A.  8S4 
(1908).    See,  also,  Outright  v.  Stanford,  81  111.  240  (1876). 

8  0  The  statement  of  facts  is  omitted,  and  part  only  of  the  opinion  is  given. 


Ch.    4)  PAYMENT  OF   LEGACIES  AND    SHARES.  693 

a  long  time  past  utterly  insolvent;  and  John  M.  Frazier,  the  other  ad- 
ministrator and  principal  in  the  bond,  died  in  1870,  also  insolvent^  and 
before  the  estate  of  Robert  Seth  was  fully  administered.  Grafton,  the 
co-surety  with  Coates,  died  in  April,  1867,  leaving  considerable  estate, 
and  by  his  will  disposed  of  his  property  to  his  mother  and  brothers  and 
sisters,  and  appointed  John  M.  Frazier  and  Thomas  L.  Hall  his  execu- 
tors. Coates  died  in  September,  1871,  leaving  a  will  wherein  the  com- 
plainant was  made  executor. 

In  October,  1870,  Hall,  the  surviving  administrator  of  Grafton,  set- 
tled in  the  orphans'  court  his  second  and  final  account,  showing  that 
the  personal  estate  of  the  testator  had  been  fully  administered,  and 
thereupon  passed  over  the  property  to  the  parties  entitled  to  receive  it 
under  the  will  of  the  deceased. 

In  October,  1873,  Alexander  H.  Seth,  as  surviving  administrator  of 
Robert  Seth,  passed  an  account  in  the  orphans'  court,  showing  certain 
balances  due  to  the  residuary  legatees  under  the  will  of  his  testator; 
and  very  soon  thereafter  suits  were  instituted  on  the  administration 
bond,  at  the  instance  and  for  the  use  of  some  oj  such  legatees,  against 
the  complainant  as  executor  of  Goates,  and  also  against  Alexander  H. 
Seth,  the  surviving  administrator,  and  against  the  executrix  of  Frazier, 
and  also  against  Hall,  the  surviving  executor  of  Grafton.  In  these 
suits  recoveries  were  had  as  against  the  complainant;  but,  as  against 
Seth,  the  judgments  were  unavailing,  because  of  his  insolvent  condition, 
and  as  against  Frazier's  executrix  there  were  no  assets  to  be  bound  by 
judgment,  and  Hall,  as  the  surviving  executor  of  Grafton,  successfully 
resisted  recovery  against  him,  on  the  ground  that  he  had  fully  adminis- 
tered the  estate  of  his  testator  before  he  was  notified  of  the  claims. 
Consequently,  the  complainant,  as  executor  of  Coates,  was  required  and 
did  pay,  in  1874,  not  only  the  legacies  for  which  judgments  were  re- 
covered, but  other  legacies  for  which  the  bond  was  bound,  amounting 
in  the  whole  to  the  sum  of  $4,765. 

Upon  the  facts,  as  detailed  in  the  bill,  the  complainant  prays  that  the 
legatees  or  distributees  of  the  estate  of  Grafton  may  contribute  their 
respective  proportions  to  reimburse  him,  as  the  executor  of  Coates,  to 
the  extent  of  one-half  of  the  amount  which  he  has  been  required  to  pay 
to  the  legatees  under  the  will  of  Robert  Seth. 

This  application  is  resisted  upon  the  ground  that  the  estate  of  Graf- 
ton is  entirely  and  completely  exonerated  from  any  and  all  obligation 
created  by  the  bond,  by  reason  of  the  death  of  Grafton  and  the  full 
administration  of  his  estate  before  the  existence  of  the  claims  was 
notified  to  his  executor,  and  that,  consequently,  there  is  no  right  of 
contribution  that  can  be  maintained  by  the  complainant  as  against  the 
legatees  or  distributees  of  the  co-surety's  estate. 

That  the  executor  of  Grafton  was  exonerated,  if  he  fully  adminis- 
tered the  estate  and  paid  it  over  to  the  legatees  or  distributees  without 
due  notice  of  the  claims,  and  after  giving  the  notice  by  advertisement 
as  required  by  the  statute,  may  readily  be  conceded.     *     *     * 


694  PROBATE   AND    ADMINISTRATION.  (Part   3 

The  law  [the  state  statute]  is  very  explicit  *  *  *  m  providing 
for  the  exoneration  of  the  executor,  upon  his  observing  certain  pre- 
cautions ;  but  it  is  to  be  noticed  and  borne  in  mind  that  it  is  the  execu- 
tor or  administrator  personahy  that  is  to  be  exonerated  and  discharged, 
and  not  the  estate  of  the  decedent.  It  is  nowhere  declared  or  intimated 
that  there  should  be  no  remedy  for  a  creditor  who  may  have  failed  to  ' 
authenticate  and  notify  his  claim  to  the  executor,  before  final  adminis- 
tration, or  that,  if  the  creditor's  claim  be  not  ascertained  or  provable 
before  such  final  settlement  and  distribution,  he  should  be  without 
remedy,  notwithstanding  his  debtor's  assets  may  be  shewn  to  be  abund- 
ant, simply  because  the  executor  or  administrator  may  have  delivered 
them  over  to  legatees  or  distributees.  It  would  be  strange,  indeed,  if 
such  were  the  provisions  of  the  law.  What  would  be  the  predicament 
of  an  absent  creditor,  who  might  be  totally  ignorant  of  either  the 
death  of  his  debtor,  or  of  the  administration  of  his  estate?  What 
would  become  of  parties  dependent  for  their  protection  and  security 
upon  official  bonds,  guardian  bonds,  trustees'  bonds,  and  the  like,  where 
the  breach  has  not  occurred,  or,  if  occurred  has  not  been  ascertained 
at  the  time  of  the  final  settlement  and  distribution  of  a  surety's  estate, 
if  the  position  of  the  defendants  in  this  case  be  sustained?  Surely  the 
law  never  contemplated  the  total  discharge  of  the  deceased  surety's 
obligation  in  all  such  cases.  In  this  case,  the  amounts  for  which  the 
bond  was  ultimately  liable,  were  not  ascertained  until  October,  1873 — 
about  three  years  after  the  final  settlement  and  distribution  of  Graf- 
ton's estate.  Until  these  amounts  were  ascertained,  and  actually  paid 
by  the  complainant,  as  the  representative  of  the  co-surety  Coates, 
there  was  no  claim  provable  by  him  against  the  estate  of  Grafton.  No 
laches  therefore  can  be  imputed  to  him  in  not  exhibiting  the  claim  for 
contribution  before  distribution  of  Grafton's  estate  by  his  executor. 

In  England,  as  is  well  known,  prior  to  Lord  St.  Leonards'  Act,  23 
and  23  Vict.  c.  35,  it  was  the  established  practice  for  administrators 
and  executors  to  administer  their  estates  under  the  orders  and  decrees 
of  the  Court  of  Chancery,  and  one  great  object  in  resorting  to  that 
jurisdiction  by  the  executor  or  administrator  was  to  obtain  indemnity 
and  protection  against  all  future  liabilities  after  final  settlement.  The 
creditors  were  required  to  come  in  and  prove  their  claims  under  the  de- 
cree, just  as  they  are  required  to  come  in  and  prove  their  claims  under 
the  notice  given  by  the  executor  or  administrator  by  the  order  of  the 
orphans'  court,  in  our  practice.  Those  failing  to  come  in  and  prove 
their  claims  before  final  settlement  and  distribution  of  the  estate,  lost 
their  remedy  against  the  executor  or  administrator,  but  not  as  against 
the  legatees  or  distributees.  The  same  exoneration  of  the  executor  or 
administrator  afforded  in  England  by  the  decree  in  chancery,  is  provid- 
ed for  with  us  by  statute. 

In  the  case  of  Waller  v.  Barrett,  24  Beav.  413,  an  administration 
suit,  Lord  Romilly,  the  Master  of  the  Rolls,  in  speaking  of  the  effect 
of  the  omission  of  the  creditor  to  come  in  and  prove  his  claim  under 


Ch.    4)  PAYMENT  OF   LEGACIES  AND    SHARES.  695 

the  decree,  said:  "In  the  first  place,  I  hold  this  to  be  established  by 
the  authorities,  that  if  breaches  of  covenant  have  been  committed  at 
the  date  of  the  decree,  and  the  covenantee  do  not  come  in  and  prove 
under  the  decree,  he  will  be  barred  of  all  remedy  against  the  executors, 
and  that  the  executoi-s  will  be  perfectly  safe.  It  is  the  case  of  an 
existing  debt,  which  the  creditor  does  not  come  in  and  prove  under  the 
decree,  and  the  court  having  administered  the  assets  protects  the  ex- 
ecutors against  all  future  claims.  The  creditor,  however,  is  not  left 
without  his  remedy,  but  that  remedy  is  not  against  the  executor.  That 
principle  is  so  fully  established  in  this  court,  that  it  is  unnecessary  to 
cite  many  authorities  on  the  subject;  but  this  is  what  Lord  Eldon  says 
in  Gillespie  v.  Alexander,  3  Russ.  136,  on  the  subject:  'If  a  creditor 
does  not  come  in  till  after  the  executor  has  paid  away  the  residue,  he 
is  not  without  remedy,  though  he  is  barred  the  benefit  of  that  decree. 
If  he  has  a  mind  to  sue  the  legatees  to  bring  back  the  fund  he  may  do 
so;  but  he  cannot  affect  the  legatees  except  by  suit,  and  he  cannot 
afifect  the  executor  at  all.'  " 

The  authorities  are  exceedingly  numerous  upon  this  subject,  all 
maintaining  the  same  general  doctrine,  several  of  which  are  referred  to 
by  the  Master  of  the  Rolls,  in  Waller  v.  Barrett,  and,  among  others, 
he  refers  to  the  case  of  Knatchbull  v.  Fearnhead,  3  Myl.  &  Cr.  122,  in 
which  Lord  Cottenham  said :  "Where  an  executor  passes  his  accounts 
in  this  court,  he  is  discharged  from  further  liability,  and  the  creditor 
is  left  to  his  remedy  against  the  legatees ;  but  if  he  pays  away  the  resi- 
due without  passing  his  accounts  in  this  court,  he  does  it  at  his  own 
risk."  And  to  refer  again  to  the  case  of  Waller  v.  Barrett,  the  Master 
of  the  Rolls,  in  another  part  of  his  opinion,  made  these  observations : 
"I  am  at  a  loss  to  conceive  on  what  principle  a  debt  which  may  arise 
hereafter,  but  which  is  not  now  existing,  is  to  be  treated  on  a  footing 
dififerent  to  an  existing  debt.  The  creditor,  although  advertised  for, 
may  be  abroad  at  the  time ;  he  may  be  ignorant  of  the  whole  proceed- 
ings, and  yet  if  he  do  not  come  in  and  claim,  his  only  remedy  in  this 
court  is  against  the  legatees."  And  in  the  case  of  March  v.  Russell, 
3  Myl.  &  Cr.  31,  referred  to  in  argument,  Lord  Chancellor  Cottenham 
treated  the  doctrine  as  one  of  the  oldest  and  best  established  of  the 
court.  He  there  said :  "That  a  creditor  may  follow  assets  in  the  hands 
of  the  legatees  to  whom  they  have  been  delivered  in  ignorance  of  the 
creditor's  demand,  has  been  an  established  principle  of  this  court  from 
the  earliest  period,  of  the  decisions  in  which  we  have  any  traces." 

And  in  accordance  with  these,  and  many  other  authorities  maintain- 
ing the  same  general  principle,  Mr.  Justice  Story  has  stated  the  doc- 
trine as  one  as  firmly  established  as  any  in  the  equity  jurisprudence  of 
the  country.  In  2  Eq.  Juris.,  §  1251,  the  learned  author  says:  "But  the 
legatees  and  distributees,  although  there  was  an  original  deficiency  of 
.assets,  are  not  at  law  suable  by  the  creditor.  Yet  he  has  a  clear  right 
in  equity,  in  such  a  case,  to  follow  the  assets  of  the  testator  into  their 
hands,  as  a  trust  fund  for  the  payment  of  his  debt.    The  legatees  and 


696  PROBATE   AND    ADMINISTRATION.  (Part   3 

distributees  are  in  equity  treated  as  trustees  for  this  purpose ;  for  they 
are  not  entitled  to  anything,  except  the  surplus  of  the  assets  after  all 
the  debts  are  paid/'  This  just  and  equitable  doctrine  formed  a  part 
of  the  system  of  jurisprudence  implanted  here  from  the  mother  coun- 
try, and  there  is  nothing  in  our  testamentary  system  that  at  all  mili- 
tates against  its  continued  operation.  Indeed,  it  has  been  fully  recog- 
nized by  this  court  in  the  case  of  Kent  v.  Somervell,  7  Gill  &  J.  265, 
270,  and  has  been  applied  and  acted  on  in  the  case  of  Hanson  v.  Worth- 
ington,  12  Md.  418,  with  respect  to  a  legacy  erroneously  paid.  See, 
also,  Somervell  v.  Somervell,  3  Gill,  276,  43  Am.  Dec.  340. 

Now,  in  England,  by  St.  22  &  23  Vict.  c.  35,  §  29,  very  much  the 
same  kind  of  notice  by  advertisement  is  required  to  be  given  to  credit- 
ors to  produce  their  claims  to  the  administrator  or  executor,  as  that 
required  to  be  given  by  our  Code.  It  is  provided  that  at  the  expira- 
tion of  the  time  named  in  the  notice  for  sending  in  such  claims,  the  ex- 
ecutor or  administrator  shall  be  at  liberty  to  distribute  the  assets  of  the 
testator  or  intestate,  or  any  part  thereof,  amongst  the  parties  entitled 
thereto,  having  regard  to  the  claims  of  which  such  executor  or  admin- 
istrator has  notice,  and  shall  not  be  liable  for  the  assets,  or  any  part 
chereof,  so  distributed,  to  any  person  of  whose  claim  such  executor  or 
administrator  shall  not  have  had  notice  at  the  time  of  distribution. 
But  it  is  declared  that  nothing  in  the  act  shall  be  taken  in  any  manner 
£0  prejudice  the  right  of  the  creditor  to  follow  the  assets  so  distributed 
Into  the  hands  of  the  persons  to  whom  distribution  may  be  made ;  the 
object  and  design  of  the  act  being  to  avoid  the  expense  and  delay  at- 
tending administration  suits,  and  to  afford  to  the  executor  or  adminis- 
trator the  spme  protection  that  he  would  have  under  a  decree  in  chan- 
rery.  Clegg  v.  Rowland,  L.  R.  3  Eq.  Cas.  368.  This  same  protection 
V9.S  designed  by  the  sections  of  the  Code  to  which  we  have  referred, 
and  hence,  by  the  terms  of  the  statute,  only  the  executor  or  adminis- 
tr'^tor  is  exonerated   from  liability  upon  final  administration  of  the 

assets,  and  not  the  estate  or  those  to  whom  it  has  been  distributed. 
*     *     * 

We  need  not  say  more  to  justify  the  conclusion  that  while  the  ex- 
ecutor of  Grafton  may  be  exonerated,  there  has  been  no  discharge 
from,  or  extinguishment  of,  the  obligation  of  the  bond,  as  to  Grafton's 
estate,  by  reason  of  the  fact  that  the  estate  was  administered  and  dis- 
tributed before  the  claim  of  the  complainant  was  presented.  Such  con- 
clusion is  but  the  natural  and  irresistible  deduction  from  the  principles 
which  we  have  stated.     *     *     * 

2.  As  to  the  question  of  the  complainant's  right  to  contribution  as 
against  the  legatees  who  have  received  the  estate  of  the  deceased  co- 
surety, that  has  been  virtually  answered  affirmatively  in  what  has  been 
sa'd  in  reference  to  the  first  question  considered;  and  we  think  it 
clear  beyond  doubt.  If  the  bond  was  still  liable  at  the  time  of  payment, 
the  implied  obligation,  founded  in  natural  justice  and  equity,  was  oper- 
ative to  entitle  the  surety  or  his  personal  representative  paying  the 


Ch.  4)  PAYMENT  OF  LEGACIES  AND  SHARES.  697 

debt  to  contribution  from  the  estate  of  a  deceased  co-surety.  *  *  * 
Each  legatee  or  distributee  is  liable  to  make  contribution  in  due  propor- 
tion to  the  amount  received  by  him.  Gillespie  v.  Alexander,  3  Russ. 
130.     *     *     * 

Decree  reversed,  and  cause  remanded. 


HOLT  V.  LIBBY  et  al. 
(Supreme  Judicial  Court  of  Maine,  1888.     80  Me.  329,  14  Atl.  201.) 

Exceptions  from  Supreme  Judicial  Court,  Cumberland  county. 

Trustee  process  to  recover  a  legacy  due  the  principal  defendant. 
The  trustees  claimed  that  the  legacy  was  offset  by  debt  due  from  the 
fegatee  to  the  estate.  The  plaintifif  replied  that  the  debt  was  barred  by 
the  statute  of  limitations.    The  opinion  states  the  other  material  facts. 

Peters,  C.  J.  It  is  a  general  rule,  in  the  settlement  of  legacies  by 
an  executor,  that  he  may  retain  the  legacy — the  whole  or  a  sufficient 
portion — in  satisfaction  of  the  legatee's  debt  to  the  estate  if  the  tes- 
tator does  not  indicate,  either  in  the  terms  of  the  bequest  or  in  other 
parts  of  the  will,  that  it  shall  be  otherwise.  This  is  the  rule  both  in 
law  and  equity.*  The  English  practice  goes  further,  and  allows  the 
rule  to  prevail,  on  the  idea  of  lien,  as  to  debts  which  have  become  bar- 
red by  the  statute  of  limitations.  The  leading  case  maintaining  the 
English  rule  seems  to  be  Courtenay  v.  Williams,  3  Hare,  539.  Subse- 
quent English  cases  follow  in  the  same  line.  Rose  v.  Gould,  15  Beav. 
189 ;  Coates  v.  Coates,  33  Beav.  249 ;  1  Redf.  Wills,  489,  and  cases 
cited  in  note.  One  or  two  of  the  American  state  courts  may  have 
practiced  on  the  English  rule.  But  a  legacy  was  recoverable  in  Eng- 
land, in  the  day- of  the  authorities  cited,  only  in  chancery.  The  same 
rule  of  equitable  set-off  prevails  in  that  country,  not  only  as  to  lega- 
cies, but  also  as  to  the  share  of  one  entitled  as  next  of  kin  in  the  es- 
tate of  an  intestate.  In  re  Cordwell's  Estate,  L.  R.  20  Eq.  644.  The 
reason  assigned  in  the  latter  case  for  the  rule  is  that,  "until  the  debtor 
discharges  his  duty  to  the  estate  by  paying  the  debt  he  owes  to  it,  he 
can  have  no  right  or  title  to  any  part  of  it  under  the  statute." 

This  doctrine  cannot  be  applicable  in  this  state,  and  in  most  of  the 
states,  where  a  legacy  is  made  by  statute,  if  not  by  ancient  practice,  a 
legal  claim.  With  us  it  is  a  distinct  and  independent  legal  claim.  The 
estate  is  just  as  much  of  a  debtor  to  the  indebted  legatee  as  the  lega- 
tee is  to  the  estate.  Each  has  a  legal  right  and  remedy,  and  a  stat- 
ute-barred debt  is  not  more  recoverable  by  an  estate  than  by  any  other 
creditor.  To  our  minds,  this  is  the  better  doctrine.  Observation 
leads  us  to  believe  that  a  testator  is  more  likely  to  intend  to  remit  than 
to  collect  such  debts,  when  nothing  is  declared  of  them  by  him  in  his 
will,  especially  debts  against  his  children  and  relatives.     In  many  in- 

*0n  his  duty  to  retain  for  his  own  debt  to  the  estate,  see  6  Am.  &  Eng.  Ann.  Cas.  810,  note. 


698  PROBATE  AND    ADMINISTRATION.  (Part    3 

Stances  such  claims  are  covered  by  the  dust  of  time  and  forgotten, 
though  found  by  executors  after  the  death  of  the  testators.  In  many 
other  instances  the  advances  are  intended  as  benefactions  and  gifts, 
conditioned  upon  some  unforeseen  circumstance  arising  to  make  it 
expedient  to  regard  them  as  debts.  The  question  under  discussion 
has  been  in  Maine  ah'eady  practically,  and  in  Massachusetts  expressly 
and  fully,  decided  in  accordance  with  these  views.  Wadleigh  v.  Jor- 
dan, 74  Me.  483;  Allen  v.  Edwards,  136  Mass.  138. 

The  other  question  of  the  case  is  whether  a  plaintiff  who  attaches  a 
legacy  by  the  trustee  process  is  permitted  to  set  up  the  limitation  bar  to 
an  offset  claimed  by  an  e^xecutor  against  the  debtor  legatee.  We  think 
it  is  both  logical  and  reasonable  that  the  creditor  should  have  the  same 
right  to  the  thing  attached,  and  all  its  incidents,  that  the  debtor  has. 
If  his  attachment  becomes  perfected,  the  debtor's  right  becomes  his 
right,  and  he  should  have  the  power  to  save  and  protect  it  as  if  his 
own.  The  law  can  make  an  assignment  of  the  legacy  as  effectually  as 
the  legatee  himself  can.  Otherwise  we  should,  in  the  present  case, 
have,  as  has  been  suggested,  the  curious  result  of  an  attaching  cred- 
itor failing  to  collect  a  legacy  which  his  debtor  can  collect.  It  would 
allow  an  assignor  to  enjoy  the  benefit  of  a  claim,  the  title  to  which  had 
legally  passed  to  an  assignee.  The  principle  involved  in  this  point  has 
been  virtually  settled  in  favor  of  the  plaintiff  by  the  case  of  Sawyer  v. 
Sawyer,  74  Me.  580,  and  the  very  satisfactory  reasoning  in  that  case 
is  as  pertinent  to  the  facts  in  this  case  as  to  the  facts  there.  By  Rev. 
St.  c.  65,  §  31,  any  legatee  of  a  residuary  or  specific  legacy  under  a 
will  may  recover  the  same  in  a  suit  at  law.  The  word  "specific"  is  not 
here  used  in  a  strictly  technical  testamentary  sense,  but  means  definite, 
particular,  or  special.  Any  legacy  may  be  recovered  by  legal  remedy, 
unless,  from  exceptional  reasons,  equity  should  be  resorted  to. 

Exceptions  sustained. 

Walton,  Virgin,  Libbey,  Foster,  and  HaskeIvL,  JJ.,  concurred. ^^ 

31  See  Wilson  v.  Smith  (O.  C.)  117  Fed.  707-709  (1902),  where  cases  pro  and 
contra  are  cited.  See,  also,  Leask  v.  Hoagland,  64  Misc.  Rep.  156,  118  N.  Y. 
Supp.  1035  (1909)  ;  Ex  parte  Wilson,  84  S.  C.  444,  66  S.  E.  675  (1910),  and  cases 
post,  pp.  748,  751. 

In  Gosnell,  Trustee,  v.  Flack,  76  Md.  423,  426,  427,  25  Atl.  411,  412,  18  L.  R. 
A.  158  (1892),  MeSherry,  J.,  said:  "The  right  of  an  administrator  to  retain 
from  the  share  of  a  distributee  the  amount  due  by  the  latter  to  the  intestate 
out  of  whose  estate  he  is  entitled  to  a  share  is  undeniably  clear.  Smith  & 
Talbott  V.  Donnell,  Ex'r,  9  Gill,  84;  Manning  v.  Thurston  et  al.,  59  Md. 
218.  And  we  think  it  equally  clear  that  this  right  exists  where  the  debt  has 
been  incurred  to  the  estate  itself  by  the  distributee  as  administrator  aft- 
er the  decedent's  death.  2  Woerner  on  Adm.  §  564.  *  *  *  it  would 
be  contrary  to  the  plainest  principles  of  justice  to  allow  an  administra- 
tor, who  is  also  distributee,  and  who  is  indebted  to  the  decedent,  or  who  by 
reason  of  a  subsequent  defalcation  becomes  indebted  to  the  estate,  to  escape 
the  payment  of  his  indebtedness  if  he  happens  to  be  insolvent,  and  besides 
that  to  receive  his  full,  unabated  distributive  share.  In  such  a  case  there  is 
no  question  of  impounding  or  intercepting  a  legal  estate  to  satisfy  in  equity 
a  delinquent  trustee's  malversations.  It  is  merely  an  application  of  the 
doctrine  of  set-off."  In  In  re  Abrahams,  Abrahams  v.  Abrahams,  [1908]  2  Ch. 
69,  it  is  held  that,  "where  at  the  death  of  a  testator  a  debt  is  owing  to  him 


Ch.    4)  PAYMENT  OF   LEGACIES  AND    SHARES.  699 

GITTINS  V.  STEELE. 

(High  Court  of  Chancery,  ISIS.    1  Swanst.  199.) 

In  preparing  the  minutes  of  the  decree  on  the  appeal  in  this  case 
(reported  1  Swanst.  24),  a  question  arose  whether  in  refunding  so 
much  of  the  legacy  of  £7,000  as  had  been  paid  out  of  the  personal  es- 
tate, the  legatees  of  that  sum,  who  were  also  residuary  legatees,  should 
be  charged  with  interest. 

The  Lord  Chancellor  [Eldon].  Where  the  fund  out  of  which  the 
legacy  ought  to  have  been  paid  is  in  the  hands  of  the  court  making 
interest,  unquestionably  interest  is  due.  If  a  legacy  has  been  errone- 
ously paid  to  a  legatee  who  has  no  farther  property  in  the  estate,  in 
recalling  that  payment  I  apprehend  that  the  rule  of  the  court  is  not 
to  charge  interest;  but  if  the  legatee  is  entitled  to  another  fund  making 
interest  in  the  hands  of  the  court,  justice  must  be  done  out  of  his  share. 

The  order  directed  payment  of  interest  at  the  rate  of  4  per  cent. 
Reg.  Lib.  A.  1817,  fol.  1689.^^ 


In  re  WEST. 
WEST  V.  ROBERTS. 

(Supreme  Court  of  Judicature,  Chancery  Division.     [1909]  2  Ch.  ISO.) 

Action. 

By  her  will,  dated  February  25,  1898,  Emma  J.  West  devised  and 
bequeathed  her  residuary ,  real  and  personal  estate  to  her  executors 
and  trustees  upon  trust  for  sale  and  conversion,  and  directed  them  to 
hold  the  net  proceeds  (after  providing  for  debts,  funeral  and  testamen- 
tary expenses,  legacies,  and  annuities)  upon  trust  for  her  children, 
Charles,  Josephine,  Isabelle,  and  Clara,  in  equal  shares.     Each  share 

by  a  person  to  whom  a  share  of  residue  is  immediately  given  by  the  will,  but 
the  debt  is  payable  by  installments,  the  executors  are  not  entitled  to  retain  the 
share  of  the  beneficiary  as  against  the  future  installments  of  the  debt  that 
may  become  due,  but  are  bound  to  pay  it  to  the  beneficiary  without  reference 
to  such  installments"  (syllabus).  On  whether  an  heir's  indebtedness  to  the  es- 
tate forms  a  counterclaim  or  set-off  against  his  distributive  share  of  the  pro- 
ceeds of  a  sale  of  the  realty  to  pay  debts,  see  4  L.  R.  A.  (N.  S.)  1S9,  note. 

On  the  statute  of  limitations  as  a  defense  to  actions  or  suits  for  legacies 
and  distributive  shares,  see  IS  Am.  &  Eng.  Ency.  Law  (2d  Ed.)  S0.3-S05. 

32  "If,  however,  any  one  or  more  of  the  residuary  legatees  has  received 
more  than  his  or  her  equal  share  of  the  funds  for  division,  then  to  the  extent 
of  such  excess  such  legatee  has  received  money  not  belonging  to  him  or  her, 
as  the  case  may  be,  and  is  bound  to  refund  the  same,  with  interest,  to  the 
executors  or  persons  representing  them,  or,  in  this  case,  where  all  the  parties 
are  before  the  court,  to  those  who  have  been  underpaid,  in  order  to  avoid 
circuity  of  action.  Inasmuch,  however,  as  under  the  view  which  we  shall  talje 
of  other  exceptions,  it  is  altogether  improbable  that  any  of  the  residuary  leg- 
atees will  be  found  to  have  been  overpaid,  we  need  not  dwell  further  upon  this 
subject."  Mclver,  C.  J.,  in  Buerhaus  v.  De  Saussure,  41  S.  C.  457,  491,  19  S.  E. 
926,  944  (1S94). 


700  PROBATE  AND    ADMINISTRATION.  (Part   'S 

was  settled  as  therein  mentioned,  the  son  taking  a  protected  life  inter- 
est, and  the  daughters  hfe  interests  without  power  of  anticipation. 

By  a  first  codicil,  dated  October  17,  1902,  the  testatrix  revoked  the 
provisions  for  the  settlement  of  Josephine's  and  Isabella's  shares  and 
gave  them  their  shares  absolutely. 

The  second  codicil,  of  March  13,  1903,  is  not  material. 

By  a  third  codicil,  dated  July  27,  1903,  the  testatrix  bequeathed  one- 
third  of  her  preference  and  ordinary  shares  in  J.  &  E.  Atkinson,  Limit- 
ed, to  Josephine,  one-third  of  the  same  shares  to  Isabelle,  and  one- 
third  of  the  same  shares  to  her  trustees  upon  the  trusts  of  Clara's 
fourth  share  of  residue. 

The  fourth  codicil,  of  April  2,  1904,  is  not  material. 

The  testatrix  died  on  July  17,  1904,  and  her  will  and  four  codicils 
were  proved  on  August  30,  1904.  After  first  transferring  the  shares 
into  their  own  names  as  shareholders,  the  executors  and  trustees  duly 
transferred  one-third  of  the  shares  to  Josephine  and  one-third  to  Isa- 
belle and  retained  one-third  as  trustees  of  Clara's  settled  share. 

On  December  8,  1907,  the  testatrix's  sister-in-law,  Mrs.  King,  died. 
Among  her  papers  was  a  sealed  envelope  on  which  the  testatrix  had 
written:  "To  be  opened  only  after  the  death  of  Mrs.  King  should  I 
predecease  her.  If  occasion  demands  to  be  returned  to  Emma  J.  West, 
19  Clevedon  Square,  Hyde  Park  W." 

This  envelope  contained  a  fifth  codicil,  dated  June  16,  1904,  where- 
by the  testatrix  revoked  the  third  codicil  and  bequeathed  a  fourth  part 
of  the  Atkinson  shares  to  each  of  her  children  Josephine,  Isabelle,  and 
Charles  absolutely,  and  a  fourth  part  to  Clara  in  settlement  according 
to  the  will. 

On  January  9,  1908,  the  original  probate  'of  the  will  and  four  codi- 
cils was  revoked,  and  on  November  28,  1908,  new  probate  of  the  will 
and  five  codicils  was  granted  to  the  same  executors. 

In  the  meantime,  namely,  on  February  26,  1908,  the  plaintiff 
Charles  brought  this  action  to  recover  one  fourth  of  the  shares  and 
one  fourth  of  the  dividends  from  the  testatrix's  death  from  the  de- 
fendants Josephine,  Isabelle,  and  Clara  and  the  trustees  respectively. 
Josephine  and  Isabelle  admitted  the  plaintiff's  right  to  the  shares  and 
transferred  their  proportion  pending  the  action.  Clara  was  willing 
that  the  trustees  should  transfer  on  the  order  of  the  court. 

The  defendants  did  not,  however,  admit  the  plaintiff's  right  to  share 
in  any  dividends  paid  before  December  8,  1907,  when  the  fifth  codicil 
(vas  discovered. 

SwiNFEN  Eady,  J.  (after  stating  the  facts).  The  defendants  do 
not  dispute  that  the  plaintiff  is  entitled  to  thp  shares  bequeathed  to 
him  by  the  fifth  codicil,  which  were  erroneously  but  inadvertently 
transferred  to  the  wrong  persons,  but  they  contend  that  the  plaintiff  is 
not  entitled  to  the  dividends  which  in  the  meantime  they  have  re- 
ceived and  retained  for  their  own  use. 


Ch.  4)  PAYMENT  OF  LEGACIBS  AND  SHARES.  701 

It  is  exceedingly  difficult  to  see  any  principle  upon  which  the  de- 
fendants, whilst  conceding  that  they  are  not  entitled  to  retain  the 
shares  given  to  their  brother  by  the  fifth  codicil,  are  yet  entitled  to 
retain  for  their  own  use  the  dividends  on  those  shares  which  were 
not  really  bequeathed  to  them  at  all.  It  is  said  that  where  a  legatee 
has  been  ordered  to  refund  either  in  respect  of  a  pecuniary  legacy  or 
in  respect  of  a  share  of  residue,  such  refunding  under  the  rule  laid 
down  in  Gittins  v.  Steele,  1  Swans.  199,  is  without  interest;  but  it  ap- 
pears to  me  that  the  reasoning  has  no  application  to  a  case  of  this 
kind,  where  the  legacy  is  of  specific  shares,  because  upon  the  assent 
of  the  executors  those  shares  vest  in  the  legatee,  and  the  assent,  when 
given,  has  relation  to  the  time  of  the  testatrix's  death.  In  the  case  of 
a  specific  legacy  it  is  well  established  that  immediately  after  the  ex- 
ecutors' assent  the  legacy  vests  in  the  legatee,  and  he  can  maintain  an 
action  at  law  in  respect  of  it.  If  the  plaintifif  has  a  legal  right  to  the 
shares  as  from  the  testatrix's  death,  it  seems  to  me  that  he  has  also 
a  legal  right  to  the  interest  or  dividends. 

In  Williams  on  Executors  (10th  Ed.)  p.  1108,  it  is  said:  "The 
assent  of  an  executor  shall  have  relation  to  the  time  of  the  testator's 
death.  Hence,  in  the  case  of  a  devise  of  a  term  of  years  in  tithes,  in 
an  advowson,  or  in  a  house  or  land,  if  after  the  testator's  death,  and 
before  the  executor's  assent,  tithes  are  set  out,  the  church  becomes 
void,  or  rent  from  the  undertenant  becomes  payable,  the  assent  by  rela- 
tion shall  perfect  the  legatee's  title  to  these  several  interests." 

In  Saunders'  Case,  5  Rep.  12b,  it  is  said  that  "if  lessee  for  years 
devises  his  term  to  another,  and  makes  his  executors,  and  dies,  the 
executors  do  waste,  and  afterwards  assent  to  the  devise,  in  that  case, 
although  between  the  executors  and  the  devisee  it  hath  relation,  and 
the  devisee  is  in  by  the  devisor,  yet  an  action  of  waste  shall  be  main- 
tainable against  the  executors  in  the  tenuit." 

It  was  rather  suggested  that  the  assent,  if  any,  in  this  case  under 
the  second  probate  was  subject  to  the  intermediate  improper  applica- 
tion of  the  dividends,  but  I  cannot  accept  that  view.  The  legacy  was 
assented  to  and  the  usual  consequences  must  follow.  The  legatee 
became  entitled  to  the  legacy  as  from  the  testatrix's  death. 

With  regard  to  the  analogy  between  a  pecuniary  legacy  or  share 
of  residue  and  a  specific  legacy,  it  is  pointed  out  in  Williams  on  Ex- 
ecutors (10th  Ed.)  pp.  1566,  1567,  that  no  action  at  law  lies  against 
an  executor  for  a  general  legacy  or  share  of  residue.  "But  the  law 
is  different  with  respect  to  specific  legacies ;  for,  after  an  assent  by  an 
executor  to  a  specific  legacy,  he  is  clearly  liable  at  law  to  an  action  by 
the  legatee,  because  the  interest  in  any  specific  thing  bequeathed  vests 
at  law  in  the  legatee,  upon  the  assent  of  the  executor."  The  ex- 
ecutor can  only  assent  to  the  legacy  in  favor  of  the  legatee  to  whom 
it  is  given,  not  in  favor  of  a  stranger,  and  the  only  person  to  whom 
these  shares  that  I  have  to  deal  with  were  given  was  the  plaintiff. 

I  therefore  determine  that  the  plaintiff  is  entitled  to  the  shares  be- 


702  PROBATE  AND    ADMINISTRATION.  (Part   3 

queathed  to  him,  that  he  is  entitled  to  these  shares  as  from  the  testa- 
trix's death,  and  that  this  bequest  carries  the  intermediate  income, 
including  the  right  to  recover  that  income  from  those  who  have  re- 
ceived it. 


SECTION    4.— THE   EXONERATION    OF    MORTGAGED 

PROPERTY. 


HALLIWELL  v.  TANNER. 

(High  Court  of  Cliancery,  1S30.     1  Russ.  &  Myl.  633.) 

The  testator,  having  three  leasehold  estates,  bequeathed  them  to 
three  different  persons;  and,  one  of  them  being  subject  to  a  mortgage 
made  by  him,  he  directed  the  mortgage  money  to  be  paid  out  of  his 
residuary  personal  estate.  The  personal  estate  being  insufficient  for 
that  purpose,  a  question  was  made,  whether  the  legatees  of  the  two 
other  leasehold  estates  should  contribute  rateably  with  the  leasehold 
estate  in  mortgage  towards  payment  of  the  mortgage  debt. 

Thk  Master  of  The  Rolls  [Sir  John  Leach].  In  the  case  of 
Oneal  v.  Mead,  1  P.  Wms.  693,  it  was  decided  that,  as  between  a  dev- 
isee of  a  mortgaged  fee  simple  and  a  specific  legatee  of  personalty,  the 
devisee  should  not  have  his  mortgage  paid  by  the  specific  legatee,  but 
shall  take  the  mortgaged  fee  simple  cum  onere.  A  fortiori,  a  specific 
legatee  of  a  mortgaged  leasehold  shall  not  have  contribution  towards 
his  mortgage  from  other  specific  legatees  of  leasehold.  The  direction, 
that  the  mortgage  debt  should  be  paid  out  of  the  residuary  personal 
estate,  merely  follows  the  general  rule  of  law ;  and,  that  fund  failing, 
the  legatee  of  the  mortgaged  leasehold  must  take  it  cum  onere.^^ 

3  3  Contribution  from  the  other  devisees  was  denied  a  devisee,  where  land 
devised  to  him  was  mortgacred  after  the  making  of  the  will,  in  Frasier  v.  Lit- 
tleton, 100  Va.  9,  40  S.  E.  108  (1901). 

.Locke  King's  Acts. — The  present  English  law  on  the  exoneration  of  mort- 
gaged I'ealty  is  thus  stated  by  Maitlaud: 

"In  discussing  the  order  of  assets  we  have  spoken  as  though  all  the  debts 
were  unsecured;  but  what  of  secured  debts?  Among  the  debts  owed  by  the 
dead  man  there  was  one  debt  which  was  secured  by  a  mortgage  of  Blackacre. 
Does  the  fact  that  this  debt  was  thus  secured  make  any  difference  when  we 
are  discussing  the  question  what  fund  is  the  primary  fund  for  its  payment? 
The  old  answer  to  this  question  was  (as  a  general  rule),  none  at  all.  Here 
is  a  debt  and  it  must  be  paid  like  other  debts.  If  the  dead  man  has  not  made 
a  will  and  therein  given  some  direction  to  the  contrary,  the  first  fund  for  the 
payment  of  his  debts,  including  this  debt,  consists  of  his  general  or  residuary 
personalty.  Put  the  simplest  case.  He  owed  £1,000  upon  mortgage  of  Black- 
acre,  of  which,  subject  to  the  mortgage,  he  was  tenant  in  fee  simple.  He  dies 
intestate.  His  real  estate,  including  Blackacre,  descends  to  his  heir  at  law, 
while  his  personalty  will  be  distributed  among  his  next  of  kin.  But  first  debts 
must  be  paid,  including  the  mortgage  debt  on  Blackacre,  and  all  his  personalty 
must  be  swallowed  up  in  paying  debts  before  any  part  of  his  realty,  including 


Ch.    4)  PAYMENT  OF   LEGACIES  AND    SHARES.  703 

Appeal  of  HOFF. 
(Supreme  Court  of  Pennsylvania,  1855.     24  Pa.  200.) 

Woodward,  J.^*  *  *  *  fj-jg  testator  devised  to  his  wife,  the 
appellant,  for  life,  the  house  in  which  he  dwelt  on  Chestnut  street,  to- 
gether with  the  policy  of  insurance  and  furniture.  When  he  purchased 
the  house  in  1847,  there  was  a  mortgage  resting  on  it  for  $8,400,  made 
by  a  former  owner,  and  his  will  is  silent  in  regard  to  the  payment  of 
the  mortgage.  The  executors  paid  it  off  out  of  the  personalty,  and 
took  an  assignment ;  but  the  creditor  and  the  court  of  common  pleas 
refused  to  allow  them  a  credit  for  it  on  the  ground  that  the  widow 
took  the  estate  cum  onere,  and  that  she  must  pay  the  mortgage.  She 
appeals,  and  the  question  is  whether  the  mortgage  is  chargeable  on  her 
estate  or  on  the  personalty. 

The  will  contains,  in  the  introductory  clause,  the  usual  direction  as 
to  payment  of  debts,  a  phrase  which  in  England  is  necessary  to  charge 
debts  on  the  realty,  but  wholly  unnecessary  here,  where  lands  as  well 
as  personal  estate  are  bound  for  every  decedent's  debts.  Still  the 
words  "after  the  payment  of  my  lawful  debts,"  cannot  be  treated  as 
meaning  nothing;  and  if  they  are  to  have  any  significance,  it  must 
be  that  the  executors  should  pay  the  debts  before  distribution  be  made 
of  the  estate  in  pursuance  of  the  will.  A  debt  secured  by  a  mortgage 
of  the  testator's  own  making,  is  no  less  a  debt  within  the  meaning  of 
the  introductory  phraseology  of  wills  than  a  promissory  note ;  and  ex- 
ecutors are  as  much  bound  to  pay  the  one  as  the  other.  The  reason  as- 
signed in  the  English  cases  for  throwing  such  a  mortgage  upon  the  per- 
sonalty, is  that  the  personal  estate  has  been  benefited  by  the  making  of 
the  mortgage ;  a  reason  for  which  we  stand  in  no  need,  though  it  is  as 
applicable  here  as  there.  As  to  the  mortgagee,  the  mortgage  is  a 
specific  lien,  and  he  cannot  be  restrained  from  resorting  to  the  land 
pledged;    and  as  between  him  and  other  creditors,  he  will  often  be 

Blackacre,  could  be  touched.  This  seemed  unfair,  and  by  three  acts,  the  first 
of  which  is  always  spoken  of  as  'Locke  King's  Act,'  Parliament  has  tried  to 
set  this  matter  straight.  The  three  acts  are  17  &  IS  Vict.  c.  113  (1854),  30  & 
31  Vict.  c.  69  (1867),  and  40  &  41  Vict.  c.  34  (1877).  The  last  of  these  acts  says 
in  effect  that  in  the  administration  of  the  estate  of  any  testator  or  intestate 
dying  after  the  31st  of  December,  1877,  seised  or  possessed  of  any  land  or 
other  hereditaments  of  whatever  tenure  which  shall  at  the  time  of  his  death 
be  charged  with  the  payment  of  any  sum  by  way  of  mortgage  or  any  other 
equitable  charge,  including  a  lien  for  unpaid  purchase  money,  the  devisee  or 
heir  at  law  shall  not  be  entitled  to  have  such  sinn  satisfied  out  of  any  other 
estate  of  the  testator  or  intestate  unless  (in  the  case  of  a  testator)  he  shall 
have  signified  a  contrary  intention,  and  that  a  contrary  intention  shall  not  be 
deemed  to  be  signified  by  a  charge  of  or  direction  for  payment  of  debts  out  of 
residuary  real  and  personal  estate  or  residuary  real  estate.  That,  at  least 
for  the  time  being,  is  the  last  word  in  the  history  of  a  muddle."  Maitland's 
Equity  and  the  Forms  of  Action  at  Common  Law,  212,  213.  On  Locke  Kings 
Acts,  see  In  re  Birch,  [1909]  1  Ch.  787. 

34  The  statement  of  facts  and  a  small  part  of  the  opinion  are  omitted. 


704  PROBATE  AND    ADMINISTRATION.  (Part   3 

compelled  to  do  so  in  relief  of  other  funds ;  but  as  between  the  mort- 
gagor and  his  representatives,  his  mortgage  is  evidence  of  indebted- 
ness ;  and  where  there  is  nothing  in  the  will  to  control  their  action,  it 
is  their  plain  duty  to  pay  it.  And  to  excuse  them  there  must  be  a 
clear  declaration  of  intention  that  the  devisee  of  the  mortgaged  prem- 
ises is  to  take  them  cum  onere.  Thus  it  is  settled,  says  Powell,  on  the 
authority  of  a  great  number  of  cases  (see  his  work  on  Devises,  vol. 
11,  p.  671),  that  a  devise  of  mortgaged  lands,  subject  to  the  mortgage 
thereon,  does  not  throw  the  charge  on  the  estate  so  as  to  exempt  the 
funds  which  by  law  are  antecedently  liable,  as  the  testator  is  consid- 
ered to  use  the  terms  merely  as  descriptive  of  the  encumbered  situa- 
tion of  the  property,  and  not  for  the  purpose  of  subjecting  his  devisee 
to  the  burden. 

But  how  is  it  where  the  estate  comes  to  the  devisor  encumbered  by 
a  mortgage  made  by  a  former  owner?  If  it  come  by  descent  or  devise, 
and  the  testator  has  done  no  act  to  make  the  debt  his  own,  his  devisee 
will  take  the  estate  cum  onere,  and  the  executors  are  not  chargeable 
with  the  mortgage;  and  the  rule  is  the  same  even  where  the  testator 
has  purchased  the  estate,  if  he  have  had  no  connection,  or  contract, 
or  communication  with  the  mortgagee,  and  have  done  no  act  to  show 
an  intention  to  transfer  the  debt  from  the  estate  to  himself.  What 
dealings  will  have  the  effect  to  make  the  mortgage  his  own  debt,  have 
■  been  debated  in  a  great  variety  of  cases,  several  of  which  counsel  have 
cited  in  their  paper-books.  It  seems  that  paying  the  mortgagee  a  high- 
er rate  of  interest,  and  indemnifying  the  vendor  against  the  mortgage, 
both  which  occurred  in  this  case,  are  not  such  acts  on  the  part  of  the 
purchaser  as  make  him  personally  liable  for  the  mortgage  debt. 
Shafto  V.  Shafto,  2  Cox's  P.  W.  664 ;  Woods  v.  Huntingf ord,  3  Ves. 
128. 

The  court  below  ruled  the  question  on  this  ground.  The  learned 
judge  said,  it  must  appear  that  he  (the  testator)  has  done  some  act  by 
which  he  has  made  himself  directly  liable  to  the  owner  of  the  encum- 
brance; and  then  he  ruled  that  the  evidence  submitted  to  the  auditor 
was  insufficient  to  shift  the  obligation  from  the  real  to  the  personal 
fund.  We  agree  that  some  act  must  be  shown,  indicative  of  an  inten- 
tion to  take  the  mortgage  upon  himself,  and  the  court  were,  perhaps, 
right  in  setting  aside  the  evidence  of  payment  of  an  increased  rate  of 
interest,  and  certainly  right  in  disregarding  the  declarations  of  the 
testator,  made  to  persons  having  no  interest  in  the  subject;  but  they 
overlooked  one  important  and  decisive  fact,  which  was  in  full  proof 
before  the  auditor,  to  wit,  that  Hoff  purchased  not  merely  the  equity 
of  redemption  in  this  house  and  lot,  but  the  entire  interest,  and  that 
the  mortgage  formed  part  of  the  price  of  the  estate.  The  proof  was 
that  he  bought  of  William  Reynolds  and  wife  for  $13,900;  that  he 
paid  $5,500,  which,  with  this  mortgage  of  Elmes  to  Harvey  of  $8,400, 
was  "in  full  the  consideration  for  the  premises."  The  receipt  of  Rey- 
nolds, indorsed  on  his  deed  to  Hoff,  stipulates,  moreover,  that  the  said 


Ch.    4)  PAYMENT  OF  LEGACIES  AND    SHARES.  705 

mortgage  and  the  interest  due,  and  to  grow  due,  thereon  are  to  be 
paid  by  the  said  John  Hoff. 

Now,  it  is  immaterial  whether  this  amounted  to  a  covenant  on  the 
part  of  Hoff  to  pay  the  mortgage,  though,  according  to  the  doctrine  of 
Campbell  v.  Shrum,  3  Watts,  60,  and  the  cases  there  cited,  it  might 
be  easy  to  say  it  did,  but  surely  there  can  be  no  doubt  he  would  be 
liable  to  an  action  for  money  had  and  received,  at  the  suit  of  the  mort- 
gagee. As  was  said  in  the  case  of  the  Earl  of  Belvidere  v.  Rochfort, 
cited  in  2  Powell  on  Devises,  679,  the  plain  intent  of  the  deed  was  to 
put  the  purchaser  in  the  place  of  the  vendor,  and  that  he  might  not  be 
longer  liable  to  the  mortgagee,  a  sufficient  part  of  the  purchase-money 
was  left  in  the  purchaser's  hands  for  satisfaction  of  the  mortgage,  the 
purchaser  thereby  taking  upon  himself  the  vendor's  bond  and  covenant 
for  payment  of  the  mortgage,  as  fully  as  if  he  himself  had  covenanted 
to  pay  it  off,  and  either  the  vendor  or  mortgagee  might,  upon  that 
contract,  have  compelled  him  to  pay  it  off.  The  decree  in  that  case  was 
confirmed  by  the  House  of  Lords,  and  though  some  doubt  has  been 
thrown  upon  it  by  Lord  Thurlow  in  Tweddell  v.  Tweddell,  2  B.  C.  C. 
107,  and  by  Lord  Alvanley,  in  Woods  v.  Huntingford,  still  its  good 
sense  is  its  sufficient  vindication,  and  commends  it  to  our  acceptance. 
Nor  is  the  doctrine  of  that  case  destitute  of  support  from  authorities 
of  high  respectability,  as  may  be  seen  by  consulting  Billinghurst  v. 
Walker,  2  B.  C.  C.  608;  Cope  v.  Cope,  2  Salk.  449,  2  Ch.  Ca.  5; 
Pochley  v.  Pochley,  1  Vern.  36 ;  King  v.  King,  3  P.  W.  360 ;  Galton 
v.  Hancock,  2  Atk.  436 ;  Robinson  v.  Gee,  1  Vesey,  251 ;  Phillips  v. 
Phillips,  2  Bro.  C.  273;  Johnson  v.  Milkrop,  2  Vern.  112;  Balsh  v. 
Hyam,  3  P.  W.  455. 

If,  then,  Hoff,  in  his  purchase  of  Reynolds,  made  himself  liable  to 
the  mortgagee  in  any  form  of  action,  how  can  we  hesitate  to  call  the 
mortgage  his  debt?  It  is  of  no  consequence  that  the  mortgagee  was 
not  a  party  to  the  dealings  between  Hoff  and  Reynolds,  for  it  is  a 
rudimental  principle,  that  a  party  may  sue  on  a  promise  made  on  suffi- 
cient consideration  for  his  use  and  benefit,  though  it  be  made  to  an- 
other and  not  to  himself.  It  is  equally  unimportant  that  the  mortga- 
gee's remedies  against  the  land  remained  unimpaired.  The  question 
before  us  does  not  touch  the  specific  lien  of  the  mortgage,  but  the  per- 
sonal liability  of  the  purchaser.  He  made  himself  liable  to  his  vendor 
and  to  the  mortgagee,  and  he  retained  purchase  money  enough  in  his 
hands  to  indemnify  himself.  That  money  belonged  to  the  mortgagee, 
and  I  hold  he  might  have  recovered  it  in  assumpsit  if  not  in  covenant ; 
but,  not  being  paid  in  the  lifetime  of  Hoff,  his  personal  estate  had  the 
benefit  of  it,  and  it  went  into  the  hands  of  his  executors  for  the  pay- 
ment, first  of  all,  of  his  "lawful  debts."  He  had  no  debt  more  lawful 
than  this  mortgage,  and  there  is  great  precision  in  the  equitable  princi- 
ple which  devotes  that  money  in  the  executor's  hands  to  the  satisfac- 
tion of  this  debt. 

CosT.Wnxs— 45 


706  PROBATE  AND    ADMINISTRATION.  (Part   3 

But  that  principle  is  applicable  only  when  there  is  no  controlling  tes- 
tamentary intention  expressed.  If  it  were  deducible  from  the  whole 
will,  that  the  testator  meant  his  widow  should  pay  the  mortgage  out  of 
her  life  estate,  we  should  be  obliged  to  say  so — for  the  will  is  the  law 
of  his  estate.    But  no  such  intention  is  manifest. 

It  is  clear,  however,  beyond  all  doubt,  that  he  meant  the  bulk  of  his 
personal  estate  should  go  to  legatees  in  the  form  of  pecuniary  lega- 
cies ;  and  it  seems  to  be  settled,  that  the  devisee  of  a  mortgaged  estate 
is  not  entitled  to  be  exonerated  out  of  personal  estate  specifically  be- 
queathed. Neal  V.  Mead,  1  P.  W.  693.  And  the  same  rule,  it  has 
been  decided,  extends  to  pecuniary  legacies.  Lutkins  v.  Leigh,  Cases 
in  Time  of  Talbot,  3 ;  Hamilton  v.  Morely,  2  Vesey,  Jr.  65.  In  Rus- 
ton  v.  Ruston,  2  D.  243 ;  s.  c.  2  Y.  54,  we  have  a  discussion  of  many  of 
the  principles  I  have  adverted  to;  and,  under  a  devise  of  mortgaged 
premises,  it  was  held  that  the  personal  estate  of  the  testator  shall  not 
go  in  ease  of  the  mortgaged  premises,  so  far  as  to  defeat  specific  or 
ascertained  pecuniary  legacies,  or  any  part  thereof ;  aliter  of  the  lega- 
cies of  the  residuum. 

On  this  ground  the  decree  of  the  court  can  be  sustained  so  far  as 
the  ascertained  legacies  under  the  will  are  concerned,  but  not  as  to 
the  residuum,  and  the  auditor's  report  shows  that  there  will  be  a  resid- 
uum, though  not  of  sufficient  amount  to  pay  off  the  mortgage.  What- 
ever there  is  must  be  applied  to  the  mortgage  in  ease  of  the  widow's 
life  estate.  The  auditor  distributed  this  under  the  13th  clause  of  the 
will ;  but  so  much  of  the  decree  as  sustains  this  distribution  must  be 
reversed.  If  that  clause  be  regarded  as  a  bequest  of  additional  lega- 
cies, it  is  so  general  and  indefinite  in  terms  as  not  to  exempt  the  por- 
tion of  the  estate  to  which  it  applies  from  contribution  to  the  mort- 
gage.     *     *      *  35 


In  re  HUNT. 

(Supreme  Court  of  Rhode  Island,  1895.     19  R.  I.  139,  32  Atl.  204,  61  Am.  St. 

Rep.  743.) 

Matteson,  C.  J.  This  is  a  case  stated  for  the  opinion  of  the  court. 
Rowland  L.  Rose,  died  intestate  September  19,  1894,  seised  and  pos- 
sessed of  a  parcel  of  land  on  the  southwest  corner  of  Bridgham  and 
Greenwich  streets  in  Providence,  particularly  described  in  the  petition. 
This  parcel  of  land  was  formerly  owned  by  Dexter  N.  Knight  who 
mortgaged  it  to  the  Mechanics'  Savings  Bank  to  secure  the  payment 
of  his  note  for  $25,000,  dated  January  23,  1869.  On  February  13 
following.  Knight  conveyed  the  equity  of  redemption  in  the  mortgaged 
property  to  Gorham  Thurber  who  assumed  the  payment  of  the  m.ort- 

85  See  Raftery  v.  Monaban,  22  R.  I.  558,  48  Atl.  940  (1901). 
On  the  right  to  exoneration,  see  6  Prob.  Rep.  Ann.  631,  note ;   11  Prob.  Rep 
Ann.  435,  note;   3  L.  R.  A.  (N.  S.)  898,  note. 


Ch.    4)  PAYMENT   OF   LEGACIES   AND    SHARES.  •    T07 

gage  and  guaranteed  the  payment  of  the  mortgage  note  by  a  guaranty 
written  on  its  back.  The  trustees  of  the  estate  of  Thurber  conveyed 
the  property  to  Rose  subject  to- the  mortgage  by  deed  dated  May  11, 
1889.  The  consideration  named  in  this  deed  was  $10,000,  which  was 
the  sum  paid  by  Rose  for  the  equity  of  redemption.  He  also  assumed 
the  payment  of  the  mortgage  by  a  clause  in  the  deed  to  him  as  fol- 
lows: "Said  premises  are  subject  to  a  mortgage  of  twenty-five  thou- 
sand dollars  ($35,000)  to  the  Mechanics'  Savings  Bank  payment  of 
which  is  assumed  by  the  grantee."  On  July  22,  1889,  the  Mechanics' 
Savings  Bank  transferred  the  mortgage  to  the  Citizens'  Savings  Bank. 
Rose  thereupon  as  a  consideration  for  the  transfer  signed  an  agree- 
ment on  the  back  of  the  note  as  follows:  "Waiving  demand,  notice 
and  protest,  I  hereby  guarantee  the  full  payment  of  the  within  note; 
future  payments  of  principal  or  of  interest  in  renewal  thereof  not 
releasing  me  as  indorser."  The  interest  on  the  note  has  been  paid  to 
January  23,  1895.  The  administrator,  widow  and  heirs  at  law  of  the 
deceased  have  concurred  in  stating  the  foregoing  facts  to  obtain  the 
opinion  of  the  court  on  the  question  whether  the  heirs  are  entitled  to 
have  the  mortgage  paid  out  of  the  personal  estate  in  exoneration  of 
the  real,  or  whether  the  real  estate  descended  to  them  subject  to  the 
incumbrance  of  the  mortgage. 

The  general  rule  as  between  the  real  and  personal  representatives  is 
that  the  personalty  is  the  primary  fund  for  the  payment  of  debts :  and 
this  rule  is  not  changed  by  the  fact  that  the  debt  is  secured  by  a  mort- 
gage on  the  realty  given  by  the  deceased.  Gould  v.  Winthrop,  5  R.  I. 
321;  Atkinson  v.  Staigg,  13  R.  I.  725;  2  Williams  on  Executors, 
1012.  The  rule  extends,  however,  only  to  incumbrances  created  by 
the  deceased  himself;  if  the  estate  has  come  to  him  already  mort- 
gaged, the  estate  is  the  primary  fund  for  the  payment  of  the  debt  and 
on  his  death  passes  to  his  devisee  or  heir  at  law  subject  to  the  incum- 
brance, unless  he  has  so  dealt  with  the  mortgage  debt  as  to  make  it 
his  own  personal  debt.  Gould  v.  Winthrop,  5  R,  I.  321.  The  ques- 
tion, then,  resolves  itself  into  this :  Did  the  deceased,  purchasing  the 
equity  of  redemption,  by  assuming  the  payment  of  the  mortgage  debt 
in  the  manner  stated,  or  by  guaranteeing  the  payment  of  the  note  on 
the  transfer  of  the  mortgage  from  the  Mechanics'  Savings  Bank  to  the 
Citizens'  Savings  Bank,  make  the  mortgage  debt,  as  between  his  real 
and  personal  representatives,  his  personal  debt? 

The  assumption  of  the  mortgage  by  Rose  was  equivalent  to  a  cove- 
nant with  his  grantors  to  indemnify  them  against  the  mortgage  debt, 
or  to  a  covenant  with  them  to  pay  the  debt.  Mount  v.  Van  Ness,  33 
N.  J.  Eq.  262,  265.  Entering  into  covenants  like  these,  it  is  held,  does 
not  sufficiently  show  an  intention  on  the  part  of  the  purchaser  to 
transfer  the  debt  from  the  estate  to  himself,  as  between  his  heir  and 
executor  or  administrator,  to  have  that  eft'ect.  Evelyn  v.  Evelyn,  2  P. 
Wms.  661;  Tweddell  v.  Tweddell,  2  Bro.  Ch.  101,  152;  Woods  v. 
Huntingford,  3  Ves.  128;    Butler  v.  Butler,  5  Ves.  534;    Waring  v. 


708  PROBA.TE  AND    ADMINISTRATION.  (Part   3 

Ward,  7  Ves.  332;  Ea.;l  of  Oxford  v.  Lady  Rodney,  14  Ves.  417; 
Barham  v.  Earl  of  Thanet,  3  Myl.  &  K.  607 ;  Duke  of  Cumberland  v. 
Codrington,  3  Johns.  Ch.  (N.  Y.)  229,  8  Am.  Dec.  492;  Keyzey's 
Case,  9  Serg.  &  R.  (Pa.)  71,  73;  Mount  v.  Van  Ness,  33  N.  J.  Eq. 
262.  And  the  rule  is  the  same  even  though  the  purchaser  has  rendered 
himself  liable  at  law  to  the  mortgagee  for  the  payment  of  the  mort- 
gage debt.  Duke  of  Cumberland  v.  Codrington,  3  Johns.  Ch.  (N.  Y.) 
229,  8  Am.  Dec.  492. 

Nor  was  the  guaranty  on  the  back  of  the  note  by  Rose  sufficient  to 
manifest  an  intention  on  his  part  to  make  the  debt  his  own  in  such 
wise  as  to  change  the  natural  course  of  assets.  It  was  merely  a  col- 
lateral undertaking  in  no  way  affecting  the  original  contract  between 
the  mortgagor  and  the  holder  of  the  mortgage,  which  remained  after 
the  guaranty  precisely  as  before. 

To  have  the  effect  of  transferring  the  debt  from  the  estate  on  which 
it  is  charged  to  the  personal  estate,  the  dealing  between  the  purchaser 
and  the  mortgagee  must  go  to  the  length  of  changing  the  terms  of  the 
original  contract  so  as  virtually  to  constitute  a  new  contract;  as  for 
instance,  arranging  for  different  times  or  modes  of  payment,  or  for  an 
additional  loan  with  a  new  mortgage  including  the  old  as  well  as  the 
new  loan,  etc.  Billinghurst  v.  Walker,  2  Bro.  Ch.  603 ;  Woods  v. 
Huntingford,  3  Ves.  128;  Waring  v.  Ward,  7  Ves.  332;  Earl  of  Ox- 
ford v.  Lady  Rodney,  14  Ves.  417 ;  Barham  v.  Earl  of  Thanet,  3 
Mylne  &  K.  607 ;  Creesy  v.  Willis,  159  Mass.  249,  34  N.  E.  265 ;  2 
Jarman  on  Wills,  1449. 

We  are,  therefore,  of  the  opinion  (1)  that  the  estate  described  in  the 
petition  descended  to  the  heirs  at  law  of  Rowland  L.  Rose  charged 
with  the  burden  of  the  mortgage  for  $25,000;  (2)  that  he  did  not  by 
assuming  payment  of  the  mortgage  nor  by  guaranteeing  payment  of 
the  mortgage  note  charge  his  administrator  with  the  payment  of  the 
mortgage  debt;  (3)  that  the  administrator  will  not  be  justified  in  pay- 
ing the  mortgage  debt  out  of  the  personal  estate  which  may  come  to 
his  hands." 

8  6  See  Hetxel  v.  Hetzel  (N.  J.  Ch.)  71  Atl.  755  (1908),  to  the  effect  that 
in  New  Jersey  "the  assumption  of  a  mortgage  does  not  make  the  debt  a  per- 
.sonal  one  of  the  grantee  covenantor,"  and  hence  assumed  mortgages  are 
not  "debts  in  a  technical  sense."  See,  also,  Creesy  v.  Willis.  159  Mass.  249, 
34  N.  E.  205  flKrt.3)  where  the  court  explains  that  "it  is  well  settled  in  this 
commonwealth  that  a  promise  made  by  a  purchaser  of  an  equity  of  redemp- 
tion, by  accepting  a  deed  poll  from  his  grantor,  to  pay  the  mortgage  debt,  is 
not  a  promise  which  can  be  enforced  by  the  mortgagee  by  an  action  at  law  la 
his  own  name,  or  in  the  name  of  the  grantor  without  his  consent."  See.  also, 
Monoghan  v.  Collins  (N.  J.  Ch.)  72  Atl.  109  (1909). 

In  Nebraska,  where  the  assumption  of  the  mortgage  debt  makes  the  grantee 
personally  liable  therefor,  the  heirs  and  devisees  are  entitled  to  exoneration. 
Schade  v.  Connor.  84  Neb.  51,  120  N.  W.  1012  (1909).  See,  also,  Mosier  v. 
Bowser,  22(5  111.  46,  55,  56,  80  N.  E.  730  (1907). 

For  the  rule  wlicre  taxes  levied  on  testator's  real  estate  in  his  lifetime  are 
to  b€  paid,  see  In  re  Hewitt,  40  Misc.  Rep.  322,  81  N.  Y.  Supp.  1030  (1903). 


Ch.  4)  PAYMENT  OF  LEGACIES  AND  SHARES.  709 

TURNER  V.  LAIRD. 

(Supreme  Court  of  Errors  of  Connecticut,  1896.     68  Conn.  198,  85  Atl.  1124.) 

Suit  to  determine  the  construction  of  the  will  of  Robert  Balfour, 

deceased.    " 

The  parts  of  the  will  particularly  brought  in  question  were  the 
ninth,  tenth  and  eleventh  articles,  which  were  printed  in  the  report  of 
the  case  of  Turner  v.  Balfour,  ^'2  Conn.  89,  90,  25  Atl.  448.  By  the 
ninth  article,  "the  Geer  house"  was  devised  to  the  testator's  grandson 
Robert  Balfour,  in  fee,  subject  to  a  life  estate  in  his  widow.  By  the 
tenth,  half  of  his  residuary  estate  was  left  to  a  son  for  life,  remainder 
to  the  same  grandson,  in  fee,  and  the  other  half  to  another  son,  in  fee. 
By  the  eleventh,  in  case  Robert  Balfour  should  die,  leaving  no  issue, 
"his  share"  was  given  to  the  testator's  "six  children,  share  and  share 
alike." 

All  the  personal  estate  was  consumed  in  paying  debts,  legacies,  and 
charges  of  settlement.  The  "Geer  house"  and  a  store  building  form- 
ing part  of  the  residuary  estate,  were  each  subject  to  a  mortgage  made 
by  the  testator  after  the  execution  of  his  will,  to  secure  his  note  to  a 
savings  bank  for  a  sum  less  than  half  the  value  of  the  property  so 
mortgaged.  No  claim  on  these  notes  was  ever  presented  against  the 
estate,  and  the  time  limited  for  the  presentation  of  claims  had  expired ; 
but  one  payment  of  interest  on  the  "Geer  house"  mortgage  was  made 
by  the  administrator,  before  the  time  so  limited  had  expired.  Interest 
on  both  mortgages  had  been  fully  paid  by  the  administrator.  Robert 
Balfour  died  without  issue,  during  the  life  of  the  widow. 

The  questions  presented  were  whether  either  or  both  these  mortga- 
ges ought  to  be  paid  off  by  the  administrator,  and  if  so,  out  of  what 
funds.  The  case  was  reserved  for  the  advice  of  this  court,  on  the  com- 
plaint and  answers. 

Baldwin,  J."  A  specific  devise  of  land,  mortgaged  by  the  testator 
to  secure  his  own  debt,  prima  facie  imports  an  intention  that  such  debt 
shall  be  satisfied  out  of  the  general  personal  assets.  Hewes  v.  Dehon, 
3  Gray  (Mass.)  205.  In  the  case  at  bar,  this  presumed  intention,  with 
respect  to  the  "Geer  house,"  finds  additional  support  in  the  provision 
made  by  the  testator  in  the  first  article  of  his  will,  directing  his  execu- 
tor to  pay  all  his  just  debts  and  funeral  expenses  and  the  legacies 
subsequently  given  out  of  his  estate.  The  word  "debts,"  in  such  a 
connection,  includes  mortgage  debts.  Bishop  v.  Howarth,  59  Conn. 
455,  465,  22  Atl.  432. 

That  the  holders  of  the  mortgages  in  question  did  not  present  their 
claims  against  the  estate,  did  not,  as  between  the  executor  and  the 
devisees  of  the  mortgaged  property,  discharge  his  obligation  to  pay 
them  off.    The  extent  of  the  testator's  bounty  to  his  grandson  could 

8  7  The  statement  of  facts  is  sliglitly  abbreviated. 


710  PROBATE  AND    ADMINISTRATION.  (Part   3 

not  be  thus  reduced  by  the  acts  or  omissions  of  third  parties.  The 
plaintiff's  duty  was  the  same  as  if  the  devise  of  the  "Geer  house"  had 
been  followed  by  an  express  direction  that  any  mortgage  upon  it 
should  be  paid  by  the  executor.  A  payment  thus  required  is  made  to 
effectuate  a  gift  from  the  testator  to  the  devisee.  It  may  be  also  the 
satisfaction  of  a  claim  legally  presented.  It  may,  on  the  other  hand, 
be  made  to  a  creditor  who  does  not  wish  to  receive  it,  but  prefers  to 
let  the  debt  remain  on  interest,  and  rely  on  his  collateral  security  for 
its  ultimate  discharge. 

The  residuary  devise  and  bequest  was  of  what  might  remain  "after 
the  payment  of  my  said  debts  and  funeral  expenses,  and  the  preceding 
legacies  and  devise."  This  language  charged  on  the  residuary  real 
estate  all  debts  which  the  personal  estate  was  insufficient  to  satisfy. 
Enough  of  the  residuary  real  estate  must  therefore  be  sold  to  dis- 
charge the  mortgage  on  the  "Geer  house."  That  on  the  store  building 
should  be  satisfied  in  the  same  way,  unless  the  residuary  devisees  oth- 
erwise agree. 

Section  556  of  the  General  Statutes  which  provides  that  when  any 
estate  devised  shall  be  taken  for  payment  of  debts,  a  contribution  shall 
be  due  from  the  other  legatees  or  devisees,  applies  only  when  the' will 
is  silent,  or  its  intent  uncertain.  Here  the  estate  taken  is  residuary 
estate,  and  the  testator  required  the  debts  to  be  paid  before  the  residue 
was  formed. 

•  The  superior  court  is  advised  that  it  is  the  duty  of  the  plaintiff  to 
pay  the  mortgage  on  the  "Geer  house,"  and,  if  requested  by  any  of 
the  residuary  devisees,  that  on  the  store  building;  and  that  the  requi- 
site funds  should  be  raised  by  sale  of  so  much  as  may  be  necessary  of 
the  residuary  real  estate.  In  this  opinion  the  other  Tudges  concur- 
red." 

as  In  Btilkley  v.  Seymour,  74  Conn.  459,  .51  Atl.  125,  92  Am.  St.  Rep.  229 
(19<'»2),  lauds  subject  to  a  mortgage  placed  thereon  by  testatrix  were  specific- 
ally devised  without  mention  of  the  mortgage,  and  it  was  held  that,  as  no 
contrary  Intention  appeared  in  the  will,  the  land  passed,  to  the  devisees  ex- 
onerated from  the  mortgage  debt.  So  of  lands  mortgaged  after  the  execution 
of  the  will.  .TacUson  v.  Bevins.  74  &)nn.  9G,  49  Atl.  899  (1901).  In  Jacobs  v. 
Hutton.  79  Conn.  .'!t;o.  05  Atl.  150  (1900),  the  testator  devised  mortgaged  prop- 
erty and  then  quitclaimed  the  land  to  the  devisee,  and  it  was  held  that  the 
conveyance  did  not  deprive  the  devisee  of  the  right  to  have  the  mortgage  dis- 
charged by  the  estate.  In  the  view  of  the  court  the  devise  was  one  of  the 
property  freed  from  the  mortgage  and  a  conveyance  subject  to  the  mortgage 
wn.s  not.  therefore,  a  total  ademption,  lint  compare  Rice  v.  Rice  (Iowa)  119 
N.  W.  714  (19U9),  where  a  devise  of  land  "free  from  any  lien  or  Indebtedness 
whatever"  was  held  adeemed  by  a  conveyance  of  the  property  by  the  testator 
to  the  devisee,  although  the  conveyance  was  subject  to  the  wife's  statutory 
dower  Interest.  The  court,  however,  gave  as  a  reason  that  "the  widow's  stat- 
utory interest  Is  not  an  Incumbrance  or  Hen  in  the  ordinary  sense  in  which 
the  woriN  are  used,  uor  as  they  were  understood  by  the  testator."  119  N.  W., 
at  page  710. 


Ch.    4)  PAYMENT  OF  LEGACIES  AND    SHARES.  711 


SECTION  5.— RESIDUARY  DEVISES  AND  BEQUESTS 


39 


TINDALIv'S  EX'RS  v.  TINDALL. 
(Court  of  Errors  and  Appeals  of  New  Jersey,  1873.     24  N.  J.  Eq.  512.) 

Bill  in  chancery  by  William  Tindall  against  John  Manning  and  Ed- 
ward Paxton,  executors,  etc.,  of  Aaron  Tindall,  deceased,  for  one 
eighth  part  of  the  sum  of  $5,000,  a  lapsed  legacy  to  testator's  wife. 
Testator,  after  the  above  bequest  to  his  wife,  and  several  other  legacies, 
bequeathed  as  follows:  "I  give  and  bequeath  whatever  of  my  property 
shall  remain  after  payment  of  the  above,  and  due  settlement  of  all  my 
business,  to  my  two  friends,  John  H.  Manning  and  Edward  Paxton." 
He  appointed  Manning  and  Paxton  executors.  Testator  left  no  issue, 
but  had  eight  brothers  and  sisters.  Two  of  these  (of  whom  the  com- 
plainant is  one)  survived  him.  The  other  six  died  before  him.  All 
left  children  living  at  the  death  of  the  testator.  The  defendant  Pax- 
ton is  one  of  these  children.  The  case  was  argued  before  the  chancel- 
lor upon  bill  and  answer,  who  found  for  plaintiff,  and  defendants  ap- 
pealed. 

DalrimplE,  J.  The  question  in  this  case  is  whether  a  certain  lapsed 
legacy  of  $5,000,  given  in  and  by  the  will  of  Aaron  Tindall,  deceased, 
falls  into  the  residuum  of  the  estate  and  goes  to  the  residuary  lega- 
tees, or  remains  undisposed  of,  and  is  to  be  distributed  among  the  next 
of  kin  of  the  testator.  The  will,  after  directing  the  payment  of  debts 
and  funeral  expenses,  and  the  sale  and  disposition  of  all  testator's 
property,  real  and  personal,  which  he  might  own  at  the  time  of  his 
decease,  and  the  collection  of  the  moneys  due  him,  gives  to  his  wife, 
Ann,  in  lieu  of  her  right  of  dower  at  common  law,  the  said  legacy  of 
$5,000.  After  certain  general  legacies  and  bequests,  the  residuum  of 
the  estate  is  disposed  of  as  follows :  "I  give  and  bequeath  whatever  of 
my  property  shall  remain  after  payment  of  the  above,  and  due  settle- 
ment of  all  my  business,  to  my  two  friends,  John  H.  Manning,  to  him, 
his  heirs  and  assigns,  and  to  Edward  Paxton,  to  him,  his  heirs  and  as- 
signs." The  residuary  legatees  are  appointed  executors.  The  testa- 
tor having  survived  his  wife,  the  legacy  of  $5,000  to  her  lapsed.  This 
suit  is  brought  by  one  of  the  next  of  kin  of  the  testator,  to  recover  a 
share  of  the  legacy  which  has  thus  lapsed,  and  his  right  to  recover  is 
put  upon  the  ground  that,  as  to  the  $5,000  in  question,  the  testator 
died  intestate. 

The  rule  applicable  to  the  question  to  be  solved,  as  stated  in  the  text- 
books, as  well  as  in  many  adjudged  cases,  is  that  the  residuary  legatee 

3  9  On  the  abatement  of  residuary  devises  and  bequests,  see  note  12  to  Arm- 
strong's Appeal,  ante,  p.  659. 


712  PROBATE  AND    ADMINISTRATION.  (Part   3 

is  entitled  as  well  to  a  residue  caused  by  a  lapsed  legacy,  or  an  invalid 
or  illegal  disposition,  as  to  what  remains  after  payment  of  debts  and 
legacies.  The  only  exception  to  the  rule  is  that,  where  the  words  used 
show  an  intention  on  the  part  of  the  testator  to  exclude  from  the  op- 
eration of  the  residuary  clause  certain  portions  of  the  estate,  such  in- 
tention, as  gathered  from  the  whole  will,  must  not  be  defeated.  Or  the 
rule  embracing  the  exception,  as  stated  in  some  of  the  books,  is  that 
the  residuary  legatee  must  be  a  legatee  of  the  residue  generally,  and 
not  partially  so  only.  The  rule  is  so  firmly  established  that  citation  of 
authority  in  its  support  is  hardly  necessary.  I  will,  however,  refer 
to  the  following  text-books  and  adjudged  cases :  2  Rop.  Leg.  1672 ;  3 
Williams,  Ex'rs,  1313;  Easum  v.  Appleford,  5  Mylne  &  C.  56;  King 
V.  Woodhull,  3  Edw.  Ch.  (N.  Y.)  86 ;  James  v.  James,  4  Paige  (N.  Y.) 
117;  Banks  v.  Phelan,  4  Barb.  (N.  Y.)  90;  Cambridge  v.  Rous,  8 
Ves.  25  ;  2  Redf .  Wills,  442. 

The  learned  chancellor,  in  the  court  below,  held  that  the  case  now 
before  us  came  within  the  exception  to  the  general  rule,  because  the 
estate  given  was  that  which  should  remain  after  payment  of  the  legacies 
belore  given.  But  I  cannot  see  that  this  form  of  expression  in  any 
wiie  limits  or  restricts  the  extent  of  the  gift.  The  clause  would  have 
had  precisely  the  same  meaning  and  effect  if  it  had  been,  in  terms,  of 
the  residue  of  the  estate.  All  that  the  testator  could  give  to  his  residu- 
ary legatees  was  what  remained  of  his  estate  after  payment  of  his  par- 
ticular debts  and  legacies.  The  legal  effect  is  precisely  the  same,  wheth- 
er the  one  form  or  the  other  is  adopted. 

The  chancellor  bases  his  opinion  upon  what  he  conceives  to  be  the 
rule  as  laid  down  in  2  Williams,  Ex'rs,  p.  1315,  and  in  2  Rop.  Leg.  pp. 
1679,  1682.  Pie  also  cites  the  case  of  Attorney  General  v.  Johnstone, 
Amb.  577.  Exactly  what  Mr.  Williams  states  the  true  rule  to  be  is 
as  follows :  "The  testator  may,  by  the  terms  of  the  bequest,  narrow  the 
title  of  the  residuary  legatee,  so  as  to  exclude  him  from  lapsed  lega- 
cies ;  as  when  it  appears  to  be  the  intention  of  the  testator  that  the 
residuary  legatee  should  have  only  what  remained  after  the  payment  of 
the  legacies."  Mr.  Roper  states  the  exception  to  the  general  rule  in 
the  following  language :  "When  the  legatee  is  not  generally,  but  only 
partially,  residuary  legatee,  he  will  not,  in  that  character,  be  entitled 
to  any  benefit  from  lapses,  though  very  special  words  are  required  to 
take  a  bequest  of  the  residue  out  of  the  general  rule ;  as,  first,  when  it 
appears  the  testator  intended  the  residuary  legatee  should  have  only 
what  remained  after  the  payment  of  legacies." 

If  these  authors  intend  to  say  (which,  to  my  mind,  is  by  no  means 
clear)  that  when  the  clause  of  the  will  giving  the  residuum  of  the 
estate  contains,  or  has  annexed  to  it,  the  words,  "after  payment  of  debts 
and  legacies,"  the  settled  rule  of  construction  is  that  lapsed  legacies 
are  not  embraced,  but  that  as  to  them  the  testator  is  to  be  held  as  hav- 
ing died  intestate,  I  cannot  yield  my  assent  to  the  proposition.     The 


Ch.  4)  PAYMENT  OF  LEGACIES  AND  SHARES.  713 

cases  cited  by  the  authors  referred  to  do  not  support  such  a  doctrine, 
while  there  are  several  well-considered  cases  to  the  contrary. 

Vice  Chancellor  Wood,  in  the  case  of  Bernard  v.  Minshull,  Johns. 
Eng.  Ch.  276,  299,  says:  "All  you.  have  to  consider  is  whether  the 
property  is  excepted,  in  order  to  take  it  away,  under  all  circumstances 
and  for  all  purposes,  from  the  person  to  whom  the  rest  of  the  property 
is  given,  or  whether  it  is  excepted  merely  for  the  purpose  of  giving 
it  to  some  one  else.  If  the  latter,  and  the  gift  to  some  one  else  fails, 
the  donees  of  all  except  this  property  are  entitled  to  take  the  whole." 
In  Roberts  v.  Cooke,  16  Ves.  451,  it  was  held  that  a  general  disposi- 
tion of  personal  estate,  not  thereinbefore  specifically  disposed  of,  com- 
prehended specific  legacies  lapsed ;  the  word  "specifically"  being  held 
to  mean  "particularly."  In  the  case  of  King  v.  Woodhull,  3  Edw.  Ch. 
(N.  Y.)  79,  84,  the  form  of  the  bequest  was:  "The  residue  and  re- 
mainder of  my  estate,  if  any  there  shall  be,  after  the  payment  of  the 
said  $1,000  to  the  missionary  society,  I  give  and  bequeath  to  the  chil- 
dren of  my  niece."  And  it  was  held  broad  enough  to  embrace  as  well 
the  legacy  to  the  missionary  society,  which  it  was  claimed  was  void, 
as  a  bequest  to  a  mission  school,  which  was  held  to  be  ineffectual.  Vice 
Chancellor  McCoun  in  his  opinion  in  that  case  says  :  "The  words,  'after 
payment  of  debts  and  legacies,'  or  after  payment  of  legacies  specified 
or  recapitulated  in  the  residuary  clause  itself,  are  not  restrictive  of  the 
bequest  to  any  particular  or  partial  residue;  but  the  bequest,  after  all, 
is  general  of  the  remainder,  and  may  be  so  understood  without  doing 
violence  to  the  expressions  of  the  will.  Where  the  residuary  clause  is 
thus  worded,  the  legatee  is  as  much  a  general  legatee  of  the  residuum 
of  the  estate  as  if  such  words  were  not  used."  In  Shanley  v.  Baker, 
4  Ves.  732,  the  words  were,  all  the  rest  and  residue  of  my  estate  and 
effects  "not  by  me  hereinbefore  particularly  disposed  of;"  and  they 
were  held  to  embrace  a  leasehold  property  given  as  a  legacy,  which, 
by  the  statutes  of  mortm.ain,  was  void.  To  the  same  effect  is  the  case 
of  Brown  v.  Higgs,  4  Ves.  709.  The  case  of  Attorney  General  v.  John- 
stone, Amb.  577,  was  not  decided  upon  the  ground  that  the  residuary 
bequest  contained  words  of  import  similar  to  those  now  under  consid- 
eration, for  it  did  not;  but  the  conclusion  reached  in  that  case  was 
that,  from  the  whole  context  of  the  will,  it  was  evident  that  the  tes- 
tator did  not  intend  that  the  void  legacy  should,  in  any  event,  become 
a  part  of  the  residuum  of  his  estate.  The  syllabus  of  the  case,  which 
very  well  shows  the  point  decided,  is:  "Residue,  under  particular  cir- 
cumstances, will  not  take  in  lapsed  legacies ;"  the  residue  being  given 
as  a  small  remainder  of  about  £100,  and  the  lapsed  legacies  amounting 
to  £20,000. 

I  have  not  been  able  to  see  anything  in  the  residuary  clause,  when 
taken  by  itself,  or  in  the  context  of  this  will  now  before  us,  which  will 
authorize  the  result  sought  by  the  complainant.  It  seems  to  me  quite 
evident  that  the  testator  did  not  intend  to  die  intestate  as  to  any  part  of 
his  property.    He  gave  the  legacy  of  $5,000  to  his  wife,  to  be  accepted 


714  PROBATE  AND    ADMINISTRATION.  (Part   3    * 

at  her  option,  in  lieu  of  her  right  of  dower  in  his  estate.  If  she  should 
decline  to  accept  it  on  these  terms,  or  if,  by  reason  of  her  death  in  the 
lifetime  of  her  husband,  it  lapsed,  the  will  of  the  testator,  as  ascer- 
tained from  the  well-settled  meaning  of  the  words  he  has  used,  was 
that  the  lapsed  or  rejected  legacy  should  go  into  and  form  part  of  the 
residue  of  his  estate. 

For  the  reasons  above  stated,  the  decree  below  must  be  reversed, 
and  the  complainant's  bill  dismissed,  but  without  costs  in  this  court  or 
the  court  below.*** 


DOE  ex  dem.  FERGUSON  et  al.  v.  HEDGES  et  al. 
MCKNIGHT'S  LESSEE  et  al.  v.  SAME. 
(Superior  Court  of  Delaware,  1835.    1  Har.  524.) 

Clayton,  C.  J.*^  Mary  James  being  seised  in  fee  of  the  premises 
in  question  by  her  will  duly  executed,  dated  30th  July,  1831,  gave  and 
devised  to  "Saint  Andrew's  Church  in  Wilmington,  all  a  certain  lot 
of  land  therein  described,  to  have  and  to  hold  the  use  of  the  said  house 
and  lot  to  the  said  church  forever;  but  not  to  be  sold  on  any  account 
whatever."  And  after  bequeathing  sundry  legacies,  there  is  this  clause 
in  her  will :  "Item,  I  give,  bequeath  and  devise  to  William  Ball  and 
Mary  Ball,  children  of  James  Ball,  deceased;  and  to  John  McKnight 
all  the  residue  of  my  estate  real  and  personal  of  whatever  kind  it  may 
be."    The  lessors  of  the  plaintiff  are  the  residuary  devisees. 

It  is  not  contended  in  this  case  that  the  devise  to  Saint  Andrew's 
Church,  passes  any  estate  in  the  premises  in  question  to  the  church; 
but  it  is  admitted  that  the  devise  is  void  by  the  laws  of  this  state. 
That  question  was  decided  at  the  last  May  Term  in  Kent,  in  State, 
Use  of  Wlltbank  et  al.,  v.  Bates.  The  question  here  is,  who  take? 
the  heirs  at  law  of  Mrs.  James,  or  her  residuary  devisees? 

Since  the  case  of  Doe,  on  the  Demise  of  Morris,  v.  Underdown, 
Willes,  293,  that  question  seems  to  be  completely  settled  in  England. 
In  that  case  the  distinction,  as  far  as  we  can  ascertain,  was  first  es- 
tablished between  a  lapsed  devise,  and  a  void  devise.  The  principles 
laid  down  by  the  Chief  Justice  in  that  case  were  these :  that  the  intent 
of  the  testator  ought  always  to  be  taken  as  things  stood  at  the  making 
of  his  will,  and  is  not  to  be  collected  from  subsequent  accidents  which 
the  testator  could  not  then  foresee;  and  that  when  a  testator  in  his 
will  has  given  away  all  his  estate  and  interest  in  certain  lands,  so  that 
if  he  were  to  die  immediately  nothing  remains  undisposed  of,  he  can- 
not intend  to  give  anything  in  these  lands  to  the  residuary  devisee. 
This  latter  rule  would  govern  all  cases  of  lapsed  devises;  for  if  the 

4  0  On  residuary  clauses,  see  4  Prob.  Rep.  Ann.  491,  note. 
41  The  statement  of  facts  is  omitted. 


Ch.    4)  PAYMENT  OF  LEGACIES  AND    SHARES.  715 

testator  were  to  die  immediately  upon  the  making  of  the  will  there 
would  be  nothing  undisposed  of,  and  the  devisee  would  take ;  but  if 
the  devisee  were  to  die  between  the  making  of  the  will,  and  the  death 
of  the  testator,  the  devise  would  lapse  and  the  heir  at  law  would 
necessarily  take  in  preference  to  the  residuary  devisee,  for  it  was  not 
undisposed  of  at  the  making  of  the  will,  but  the  devise  was  rendered 
inoperative  by  a  subsequent  accident — the  death  of  the  devisee.  This 
is  not  so  in  the  case  of  a  void  devise ;  for  there  at  the  making  of  the 
will  nothing  passes,  nothing  is  disposed  of,  and  the  residuary  devisee 
under  the  clause  "all  the  residue  of  my  estate"  takes,  and  not  the  heir 
at  law.  In  Doe,  Lessee  of  Stewart,  v.  Sheffield,  13  East,  526,  this  is 
considered  as  the  settled  law ;  and  in  Doe,  on  the  Demise  of  Wells 
and  Others,  v.  Scott  and  Another,  3  Maule  &  Sel.  300,  Lord  Ellen- 
borough  in  delivering  the  judgment  of  the  court  recognizes  the  au- 
thority of  the  two  preceding  cases  as  "admitted  law"  on  the  subject. 

We  are  not  unaware  of  the  American  decisions  on  this  subject  in 
6  Conn.  293,  16  Am.  Dec.  58,*-  and  in  Lingan  v.  Carroll,  3  Har.  & 
McH.  (Md.)  333;  but  we  prefer  following  the  authorities  which  we 
have  cited.  The  heirs  at  law  do  not  appear  to  have  been  objects  of 
the  testator's  bounty;  they  are  nowhere  mentioned  in  her  will.  This 
circumstance  is  not  relied  on  in  forming  our  judgment,  but  merely  to 
show  that  the  testatrix  did  not  desire  that  her  heirs  at  law  should 
derive  any  benefit  from  her  estate.  Our  decision  is  founded  upon  the 
authorities  which  we  have  cited,  and  upon  the  principles  established  by 
them.  Our  opinion  is  therefore  for  the  residuary  devisees,  and  judg- 
ment is  accordingly  given  for  the  plaintififs  in  the  case  of  the  Lessee  of 
McKnight  and  Others  v.  Hedges ;  and  in  the  other  case,  lessee  of  J. 
Ferguson  and  others,  the  heirs  at  law  of  Mary  James,  against  the 
same  defendant,  that  judgment  be  given  for  the  defendant.** 


BLIGHT  V.  HARTNOLL. 
(Supreme  Court  of  Judicature,  Court  of  Appeal,  18S3.    L,  R.  23  Ch.  Div.  218.) 

Jessel,  M.  R.**  It  is  well  to  see  what  the  law  is  upon  this  subject 
before  we  attempt  to  construe  this  will.  I  take  it  that  the  law  as  to 
residuary  personalty  is  now  substantially  the  same  as  the  law  relating 
to  real  estate,  with  respect  to  which  the  statute  1  Vict.  c.  26,  §  25, 

4  2  Greene  v.  Dennis.  But  see  Giddings  v.  Giddings,  65  Conn.  149,  32  AtL 
334,  48  Am.  St.  Rep.  192  (1894). 

4  3  Under  modern  statutes  the  heirs  do  not  take  void  devises,  any  more  than 
lapsed,  if  the  residuary  clause  is  broad  enough  to  embrace  them.  Patterson  v. 
S\Yallow,  44  Pa.  487  (1863) ;  Gallavan  v.  Gallavan,  57  App.  Div.  320,  08  N.  Y. 
Supp.  30  (1901).  See  section  XXV  of  the  Wills  Act  in  the  Appendix,  post,  p. 
765. 

44  The  statement  of  facts,  the  concurring  opinion  of  Liudley,  L.  J.,  and  the 
opinion  of  Fry,  J.,  in  the  court  below  are  omitted.  Fry,  J.,  decided  that  the- 
wharf  fell  into  the  residue. 


716  PROBATE  AND    ADMINISTRATION.  (Part   3 

enacts  that  unless  a  contrary  intention  shall  appear  by  the  will  such 
real  estate  or  interest  as  is  comprised  in  any  devise  which  shall  fail  or 
be  void  by  reason  of  the  death  of  the  devisee  in  the  lifetime  of  the 
testator  or  by  reason  of  the  devise  being  contrary  to  law  shall  be  in- 
cluded in  the  residuary  bequest.  If  that  be  so,  the  first  question  is 
whether  the  bequest  in  this  case  is  a  residuary  bequest,  for  if  it  is 
the  void  gift  must  prima  facie  fall  into  it.  You  may  have  a  residuary 
bequest  in  various  forms;  the  same  thing  may  be  meant  though  not 
expressed  in  the  same  words.  But  however  it  is  expressed,  the  effect 
must  be  that  it  is  intended  to  comprise  all  which  is  not  disposed  of  by 
the  will.  It  is  not  a  true  residue  if  there  is  some  part  not  disposed 
of  by  the  will  to  anybody  at  all.  There  is  a  difterence  between  a 
part  of  the  estate  being  undisposed  of  and  a  part  being  unduly  dis- 
posed of.  When  I  say  a  residue  I  mean  the  residue  of  the  estate  not 
professed  to  be  otherwise  disposed  of  by  the  will.  If  any  part  is  not 
professed  to  be  disposed  of  at  all  by  the  will  there  is  no  true  residuary 
gift.  The  wording  is  not  material.  If  a  man  says,  "I  give  all  my 
personal  estate  except  my  gold  watch,  which  I  give  to  A.,  and  my 
leasehold  house,  which  I  give  to  B.,"  that  is  a  true  residuary  gift. 
The  common  form  no  doubt  is  to  begin  with  a  bequest  of  legacies  to 
A.,  B.,  and  C,  and  then  to  give  the  residue  to  D.  But  it  means  the 
same  thing.  Evans  v.  Jones,  2  Coll.  516,  is  an  authority  for  that, 
if  one  is  wanted.  But  it  is  very  different  if  a  testator  gives  every- 
thing to  A.  except  his  gold  watch  and  his  leasehold  estate  and  does  not 
give  them  to  anybody  else.  In  that  case  there  is  not  a  lapse  or  void 
gift  of  the  watch  and  leasehold  estates,  they  are  not  legacies  at  all,  but 
they  go  to  the  next  of  kin,  and  there  is  no  true  residuary  gift.  But  the 
moment  we  get  a  true  residue  the  law  is  that  the  residue  is  increased 
by  the  lapse  of  a  legacy  or  by  the  fact  that  it  has  not  been  effectually 
given  away  in  accordance  with  the  expression  of  the  testator's  inten- 
tion. 

Here  the  residuar)^  gift  is  as  simple  as  possible.  The  testatrix  gives 
to  Christiana  Hartnoll  all  her  personal  property  except  a  certain 
wharf,  and  that  wharf  is  expressed,  to  be  given  away  to  other  persons, 
but  is  not  validly  given  away,  some  of  the  limitations  being  void  for 
remoteness.  Why  should  not  this  wharf  fall  into  the  residue?  It  is 
said  that  there  is  a  contrary  intention  shewn,  because  the  will  makes 
the  wharf  subject  to  certain  debts  which  are  charged  on  it.  But  it  is 
only  made  subject  to  the  debts  if  the  legacy  takes  effect;  there  is 
nothing  charged  on  it  if  the  legacy  does  not  take,  effect.  It  appears 
to  me  very  difficult  to  suppose  that  a  testator  should  intend  that  a 
legacy  which  fails  from  being  void  should  not  go  into  the  residue. 
Unless  you  find  express  words  shewing  that  the  testator  doubted 
whether  a  bequest  in  his  will  was  void  or  not,  it  is  impossible  to  sup- 
pose that  he  contemplated  what  would  happen  if  the  bequest  was  in- 
valid. It  is  different  from  the  case  of  lapse,  for  every  testator  knows 
that  there  is  a  possibility  of  a  legatee  dying  before  him,  although  of 


Ch.  4)  PAYMENT  OP  LEGACIES  AND  SH4.RES.  717 

course  he  presumes  that  the  legatee  will  survive  him.  The  only  case 
which  I  can  conceive  of  is  where  a  testator  doubts  whether  charities 
to  which  he  wishes  to  make  bequests  are  capable  of  taking  them ;  in 
that  case  he  may  put  into  his  will  a  string  of  illegal  bequests,  but  we 
cannot  assume  that  he  knew  them  to  be  illegal.  It  is  almost  impos- 
sible to  imply  a  direction  that  if  a  legacy  should  fail,  as  for  example 
for  remoteness,  it  should  not  fall  into  the  residue.  There  is  nothing  in 
the  present  case  to  lead  one  to  suppose  that  the  testatrix  thought  the 
gift  would  be  void,  or  intended  that  if  it  was  it  should  not  fall  into 
the  residue.  Therefore  in  my  opinion  the  decision  of  Mr.  Justice  Fry 
was  correct. 

As  regards  Wainman  v.  Field,  Kay,  507,  as  I  have  before  ob- 
served, the  Vice  Chancellor  came  to  the  conclusion  that  there  was  no 
true  residue,  and  therefore  the  property  in  question  did  not  fall  into 
the  residue.  That  decision  is  merely  one  of  construction,  and  I  do  not 
think  that  I  should  have  come  to  the  same  conclusion  on  the  construc- 
tion of  the  will  in  that  case,  but  that  is  not  material.  There  is  no  prin- 
cinle  laid  down,  and  I  cannot  extract  any  principle  from  the  decision. 
Therefore  whether  I  concurred  in  the  construction  or  not  that  author- 
ity has  no  application  to  this  case. 


MOLINEAUX  V.  RAYNOLDS. 

(Court  of  Chancery  of  New  Jersey,  1896.     55  N.  J.  Eq.  187,  36  Atl.  276.) 

Reed,  V.  C.*''  *  *  *  Charles  T.  Raynolds  died,  leaving  a  will 
by  which  he  left  of  this  property  thirty-six  hundredths  to  his  son  Ed- 
ward H.,  thirty-two  hundredths  to  his  son  Chajles  T.,  and  thirty-two 
hundredths  to  Edward  H.,  as  trustee  for  his  son  William  W.  His  son 
Charles  T.  died  before  his  father,  and  the  question  is  whether  his  share 
passed  to  Mrs.  Adelaide  Raynolds  under  the  residuary  clause  of  the 
will,  or  whether  it  was  undisposed  of  by  the  will,  and  so  passed  to  the 
two  sons  as  heirs  at  law  of  their  father. 

The  two  sons,  in  their  own  right,  make  no  claim  to  any  interest  in 
their  deceased  brother's  share,  but  the  wives  of  the  two  sons  claim  an 
inchoate  right  of  dower  in  the  same,  grounded  upon  what  they  claim 
to  be  the  legal  estate  of  their  respective  husbands  as  heirs  at  law. 
Alary  S.  is  the  wife  of  Edward  H.,  and  Mattie  C.  is  the  wife  of 
William  W.  Raynolds.  At  common  law,  whenever  a  devise  lapsed  by 
the  death  of  the  devisee,  before  the  death  of  the  testator,  the  property 
passed  to  the  heirs  at  law,  while  lapsed  legacies,  instead  of  passing  to 
the  next  of  kin,  fell  in  the  residuum,  and  so  passed,  under  a  will,  to 
the  residuary  legatees.  This  distinction  between  the  course  taken,  un- 
der the  same  condition  of  affairs,  by  lapsed  devises  and  lapsed  lega- 
cies, seems  to  have  sprung  from  the  fact  that  no  real  estate  acquired  by 

*B  Part  only  of  the  opinion  is  given. 


718  PROBATE   AND    ADMINISTRATION.  (Part   3 

the  testator,  after  the  execution  of  his  will,  passed  under  the  residu- 
ary clause,  while  such  a  clause  included  all  personal  property  owned  by 
the  testator  at  the  time  of  his  death  not  otherwise  given,  no  matter 
when  acquired. 

Now,  by  our  statute  of  wills,  these  instruments  become  operative 
upon  real  property  acquired  after,  as  well  as  before,  the  date  of  the 
execution  of  the  will.  Rev.  p.  1248.  By  this  act  devises  and  legacies 
are  put  upon  the  same  footing,  and  it  would  seem  that  inasmuch  as  the 
residuary  clause  carries  all  the  personalty  left  undisposed  of  by  other 
parts  of  the  will,  the  same  should  naturally  be  its  effect  in  regard  to 
realty.  Similar  statutes  in  other  states  have  been  judicially  declared 
to  extinguish  all  difference  between  lapsed  legacies  and  lapsed  devises, 
in  this  particular,  and  that  both  pass  into  the  residuum  in  default  of  a 
contrary  intention  manifested  on  the  face  of  the  will. 

This  is  the  law  of  this  state.  In  Executors  of  Shreve  v.  Shreve, 
10  N.  J.  Eq.  385,  Chancellor  Williamson  suggests  the  query  whether 
the  statute  did  not  abolish  the  distinction  betv^^een  real  and  personal 
property  in  the  particular  mentioned ;  and  in  Smith  v.  Curtis,  29  N.  J. 
Law,  345,  it  was  expressly,  held  by  the  supreme  court  that  the  rule 
upon  which  the  distinction  between  lapsed  legacies  and  lapsed  devises 
had  arisen  should  not  be  kept  up,  as  the  reason  upon  which  the  rule 
rested  had  been  removed.  It  was  held,  in  that  case,  that  a  lapsed 
devise  passed  into  the  residuum. 

Under  the  doctrine  laid  down  in  this  case,  the  share  of  Charles  T. 
passed  to  Mrs.  Adelaide  Raynolds  under  the  residuary  clause  of  the 
will.  *  *  *  i/iy  conclusion  is  that  the  share  of  Charles  T.  Ray- 
nolds fell  into  the  residue  and  was  devised  to  Adelaide  E.  Raynolds.*® 


In  re  ISAAC. 

HARRISON  V.  ISAAC. 
(Supreme  Court  of  Judicature,  Chancery  Division.     [1905]  1  Ch.  427.) 

The  will  of  Joseph  Isaac,  after  giving  certain  pecuniary  legacies, 
directed  that  "the  remainder"  of  testator's  property  be  divided  among 
certain  designated  nephews  and  nieces.  The  will  ended:  "And  I  ap- 
point my  executor  my  residuary  legatee."    Two  of  the  pecuniary  leg- 

46  See  Drew  v.  Wakefield,  54  Me.  291,  296,  297  (1S6R) ;  Cruiclishank  v.  Home 
for  the  Friendless,  113  N.  Y.  337.  21  N.  W.  64,  4  L.  R.  A.  140  (18S9).  But  see 
Rizer  v.  Perry,  58  Md.  112  (ISSl). 

A  renunciation  by  the  specific  devisee  will  take  place  by  relation  back,  so  as 
to  give  the  property  to  the  residuary  devisee  or  other  person  next  entitled,  it 
seems.  Bradford  v.  Calhoun,  120  Tenn.  53,  109  S.  W.  502,  19  L.  R.  A.  (N.  S.> 
595  (1908).  In  that  case  the  devisee  had  only  a  life  estate,  and  the  renuncia- 
tion became  effective  by  relation,  so  as  to  vest  title  in  the  remainderman  as 
of  the  date  of  the  will  and  to  render  nugatory  an  execution  levy  by  a  judg- 
ment creditor  of  the  devisee  for  life. 


Ch.    4)  PAYMENT  OF   LEGACIES  AND    SHARES.  719 

atees  predeceased  the  testator,  and  the  executor  took  out  an  originat- 
ing summons.  Two  of  the  questions  raised  were:  (1)  Whether  the 
appointment  of  the  plaintiff  as  residuary  legatee  operated  to  revoke  or 
defeat  the  previous  bequest  of  the  remainder  of  the  testator's  property 
to  the  defendants?  (2)  Whether  by  the  lapse  of  the  two  pecuniary 
legacies,  owing  to  the  deaths  of  the  legatees  in  the  testator's  lifetime, 
the  same  "remainder"  was  increased  by  the  amount  of  the  lapsed  lega- 
cies, or  passed  to  the  plaintiff  as  residuary  legatee  ? 

The  summons  was  heard  on  February  4,  1905,  by  Buckley,  J.,  who 
decided  that  the  appointment  of  the  plaintiff  as  residuary  legatee  did 
not  revoke  the  previous  bequest  of  the  "remainder." 

The  second  question  was  then  argued. 

Buckley,  J.*^  I  have  already  held  in  answer  to  the  first  question 
that  the  appointment  of  the  executor  as  residuary  legatee  does  not  de- 
feat or  revoke  the  previous  gift  of  the  remainder  of  the  testator's 
property.  It  remains  for  me  to  determine  what  is  the  destination  of 
the  legacies  which  have  lapsed  by  the  deaths  of  the  two  legatees  in 
the  lifetime  of  the  testator. 

Now  if  the  will  had  not  contained  these  last  words  appointing  the 
executor  residuary  legatee,  it  seems  to  me  that  the  words  "the  re- 
mainder of  my  property  shall  pass,"  etc.,  would  have  constituted  a  per- 
fectly good  residuary  bequest.  But  the  will  does  contain  the  words 
I  have  mentioned.  Does  that  fact  alter  the  construction  which  I 
have  placed  on  the  first  residuary  gift?  I  do  not  think  it  does,  unless 
the  effect  be  to  reduce  the  earlier  words  to  silence.  Is  it  possible, 
without  doing  this,  to  give  a  proper  effect  to  the  later  words?  In  my 
judgment  it  is,  because  if  the  prior  gift  of  one  or  more  of  the  shares 
of  "the  remainder"  were  to  fail,  owing  to  a  lapse  by  the  death  of  the 
legatee  in  the  lifetime  of  the  testator,  the  subsequent  disposition  ap- 
pointing a  residuary  legatee  would  take  effect.  If  some  person  en- 
titled to  a  share  of  the  remainder  died  in  the  lifetime  of  the  testator, 
there  would  be  a  lapse  of  a  part  of  the  first  disposed  of  residue,  and 
under  the  second  disposition  the  residuary  legatee  would  take  some- 
thing. 

The  testator  makes  certain  gifts,  and  provides  that  "the  remainder 
of  my  property  shall  pass  as  follows."  I  think  that  means  that, 
subject  to  providing  for  such  of  the  previous  gifts  in  the  will  as  take 
effect,  the  remainder  of  the  property  shall  pass  in  the  manner  in- 
dicated. In  other  words,  the  prior  gift  is  a  residuary  bequest.  Then 
there  is  another  residuary  gift  to  which  effect  can  be  given  by  holding 
it  to  mean  that,  if  any  of  "the  remainder"  of  the  property  is  undis- 
posed of,  anything  to  be  swept  up  is  to  belong  to  the  executor,  who  is 
to  take  it  beneficially.  It  does  not  seem  to  me  that  there  is  any  au- 
thority exactly  in  point.  The  nearest  case  is  that  of  In  re  Jessop,  11 
Ir.  Ch.  Rep.  424,  where  it  appears  to  have  been  assumed  that  lapsed 

*7  The  statement  of  facts  is  rewritten  and  abbreviated. 


720    .  PROBATE   AND    ADMINISTRATION.  (Part   3 

legacies  would  enure  for  the  benefit  of  the  second  residuary  legatee. 
The  gifts  of  residue  there  were,  the  first  to  A.  and  the  second  to  A. 
and  B.  It  was  unreasonable  to  suppose  that  a  legacy  lapsing  by  the 
death  of  A.  could  be  intended  to  fall  into  residue  for  the  benefit  of  A. 
herself  and  another.  This  being  so,  there  was  nothing  that  the  sec- 
ond residuary  legatee  could  take  other  than  legacies  which  were  given 
in  priority  to  both  residuary  gifts  and  which  lapsed. 

That  is  not  the  case  here.     I  think  that  the  lapsed  legacies  in  the 
present  case  fall  into  the  first  gift  of  residue.** 


MORISEY  V.  BROWN. 

(Supreme  CJourt  of  North  Carolina,  1907.     144  N.  a  154,  56  S.  B.  704.) 
See  ante,  p.  671,  for  a  report  of  the  case. 


DRESEL  V,  KING  et  al. 

(Supreme  Judicial  C!ourt  of  Massachusetts,  Worcester,  1908.     198  Mass.  546, 
85  N.  El  77,   126  Am.  St.  Rep.  459.) 

Knowlton,  C.  J.  This  is  a  bill  brought  by  an  administrator  with 
the  will  annexed,  for  instructions  as  to  the  meaning  of  the  will.  The 
fourteenth  clause  of  the  will  is  as  follows :  "I  direct  my  executor,  here- 
inafter named,  to  convert  all  the  rest  and  residue  of  my  estate  into  cash 
and  to  divide  the  same  among  the  pecuniary  legatees  hereinbefore 
named,  in  proportion  to  their  several  pecuniary  legacies ;  but  should 
my  estate  not  herein  specifically  devised  be  insufficient  to  pay  all  my 
debts,'  charges  of  administration  and  the  pecuniary  legacies  herein  giv- 
en, said  pecuniary  legacies  are  to  be  proportionally  abated." 

One  of  the  pecuniary  legatees,  to  whom  $10,000  was  given  by  the 
will,  died  before  the  testatrix,  leaving  no  issue.  Her  legacy,  there- 
fore, lapsed,  and  the  first  question  argued  is  whether  it  fell  into  the 
residuum,  or  passed  to  the  next  of  kin  of  the  testatrix. 

We  think  that  the  residuary  clause  had  the  distinguishing  character- 
istics of  a  true  residuary  clause,  which  indicates  a  purpose  of  the  tes- 
tator thereby  to  include  all  his  estate  that  is  not  actually  disposed  of  in 
other  parts  of  his  will,  and  thus  to  make  a  complete  disposition  of  all 
his  property.  We  think  it  plain  that  this  lapsed  legacy  is  to  be  disposed 
of  under  the  residuary  clause. 

The  most  difficult  question  in  the  case  is  whether  the  gifts  in  this 
clause  are  to  the  pecuniary  legatees  as  a  class',  so  that  on  the  death  of 
one  of  them  the  whole  amount  goes  to  the  survivors,  or  whether  they 
are  gifts  to  them  as  individuals,  to  hold  as  tenants  in  common  in  the 

*8  Compare  Ward  v.  Stanard,  82  App.  Div.  386,  81  N.  T.  Supp.  906  (1903). 


Ch.    4)  PAYMENT   OF  LEGACIES  AND    SHARES.  721 

proportions  specified.  The  legatees  are  not  mentioned  by  name,  but 
their  identity  as  individuals  is  plainly  shown.  They  are  not  in  the 
ordinary  sense  members  of  a  distinct  class,  for  they  have  no  relation 
to  one  another  except  as  recipients  of  the  testatrix's  bounty.  One  of 
them  is  a  corporation,  and  most  of  them  are  not  relatives  of  the  tes- 
tatrix or  of  one  another. 

We  are  of  opinion  that  the  clause  should  be  construed  as  if  they  were 
severally  mentioned  by  name,  to  receive  each  a  share  in  the  propor- 
tion specified.  If  this  is  the  meaning,  under  the  rule  stated  in  Jackson 
V.  Roberts,  14  Gray,  546,  the  gift  to  any  one  of  them  who  died  before 
the  testatrix  would  lapse.  Such  a  result  was  reached  in  Sohier  v. 
Inches,  12  Gray,  385,  Lombard  v.  Boyden,  5  Allen,  249,  Cummings  v. 
Bramhall,  120  Mass.  552,  Frost  v.  Courtis,  167  Mass.  251,  45  N.  E. 
687,  and  Lyman  v.  Coolidge,  176  Mass.  7,  56  N.  E.  831.  The  strong- 
est case  cited  for  the  pecuniary  legatees  on  this  point  is  Prescott  v. 
Prescott,  7  Mete.  141,  but  the  language  of  the  will  in  that  case  was 
much  less  specific,  as  pointing  to  the  individuals  and  to  distinct  propor- 
tions, than  it  is  in  this.  We  are  of  opinion  that  the  present  residuary 
clause  should  be  treated  as  if  it  mentioned  the  legatees  by  name,  and 
gave  his  proportional  share  in  terms  to  each. 

In  this  view,  the  share  that  was  given  to  Annette  M.  Alden,  which 
was  2"/2  5  3  of  the  entire  residue,  lapsed,  and  passed  to  the  next  of  kin 
as  property  undisposed  of  by  the  will. 

It  is  contended  that  this  share  goes  to  the  other  residuary  legatees. 
But  as  to  this  share,  which  is  a  part  of  the  residuum,  they  are  not 
residuary  legatees.  In  Lyman  v.  Coolidge,  176  Mass.  7-9,  56  N.  E. 
831,  832,  this  court  said :  "But  where  a  legacy  lapses,  which  is  a  part 
of  the  residue,  it  cannot,  according  to  our  decisions,  fall  into  the  resi- 
due, because  it  is  itself  a  part  of  the  residue,  and  it  must  pass  as  in- 
testate estate."  This  rule  was  also  stated  and  applied  in  Sohier  v. 
Inches,  12  Gray,  385,  Lombard  v.  Boyden,  5  Allen,  249,  Frost  v.  Cour- 
tis, 167  Mass.  251,  45  N.  E.  687,  Powers  v.  Codwise,  172  Mass.  425, 
52  N.  E.  525,  and  Best  v.  Berry,  189  Mass.  510,  75  N.  E.  743,  109  Am. 
St.  Rep.  651.  It  prevails  in  other  jurisdictions.  Kerr  v.  Dougherty, 
79  N.  Y.  327,  346,  349 ;  Hard  v.  Ashley,  117  N.  Y.  606,  23  N.  E.  177 ; 
Humble  v.  Shore,  7  Hare,  247;   Bagwell  v.  Dry,  1  P.  Wms.  700. 

It  follows  that  the  proportional  part  of  the  residuum  which  would 
have  gone  to  Annette  M.  Alden  if  she  had  survived  the  testatrix  will 
be  divided  among  the  next  of  kin.     So  ordered.'** 

*»  In  In  Re  Dunster,  [1909]  1  Ch.  103.  105,  106,  Neville,  J.,  says:  "There  Is  a 
well-known  rule  that  where  residue  is  given  to  tenants  In  common  and  one  of 
the  tenants  in  common  dies  in  the  testator's  lifetime,  the  lapsed  share  does  not 
go  as  an  accretion  to  the  gift  to  the  other  tenants  in  common,  but  it  is  held 
that  there  is  an  intestacy  and  the  share  goes  among  the  next  of  kin.  That  is, 
there  can  be  no  residue  of  a  residue.  The  arguments  by  which  this  rule  was 
arrived  at  are  i>erfectly  intelligible,  and,  one  may  say,  plausible.  Neverthe- 
less, I  think  that  the  effect  of  it  is  to  defeat  the  testator's  intention  in  almost 

CoST.WlLLS-^6 


722  PROBATE  AND    ADMINISTRATION.  (Part   3 


SECTION  6.— ADVANCEMENTS  AND  THE  ADEMPTION 
AND  SATISFACTION  OF  LEGACIES  AND  DEVISES  ^° 


GRATTAN  v.  GR.\TTAN. 

(Supreme  Court  of  Illinois,  1856.    18  111.  167.) 

Skinner,  J."  This  was  a  bill  in  equity  for  distribution  of  an  in- 
testate's estate.  The  bill  alleges  that,  in  1852,  Silas  Grattan  died  in- 
testate, leaving  the  complainant,  Azariah  B.  and  Philip  D.  B.  Grattan, 
his  children,  and  sole  heirs  at  law,  and  Elizabeth  Grattan,  his  widow, 

every  case  in  which  it  is  applied;  but  it  is  a  rule  by  which  I  am  undoubtedly 
bound.  That  rule  has  been  held  to  apply  in  cases  where  the  gift  is  to  named 
persons  but  not  to  apply  in  cases  where  the  gift  is  to  a  'class.' " 

Where  the  residue  was  given  to  five  people,  and  the  gift  to  one  was  re- 
voked by  a  codicil,  it  was  held  that  his  fifth  went  to  the  next  of  kin,  and  not 
to  the  other  residuary  legatees.  Wain's  Estate,  Vaux's  Appeal,  156  Pa.  194, 
27  Atl.  59  (1893).  So  where  the  gift  to  one  lapsed.  Gorga's  Estate,  Robinson's 
Appeal,  166  Pa.  269,  31  Atl.  86  (1895). 

"It  is  true  as  a  general  rule  that  a  testator  is  not  presumed  to  bestow  his 
bounty  upon  persons  other  than  those  who  survive  him,  unless  his  intent  to 
the  contrary  is  evident.  Where  it  appears,  however,  that  a  bequest  or  devise 
bv  will  was  made  to  discharge  a  duty  or  obligation  resting  upon  the  testator, 
this,  in  effect,  will  preclude  a  lapse  of  the  bequest,  although  the  legatee  may 
die  during  the  life  time  of  the  testator.  For  instance,  the  rule  is  well  settled 
that  a  legacy  or  bequest  made  in  payment  of  a  debt  does  not  lapse  by  the 
death  of  the  legatee  prior  to  that  of  the  testator.  This  rule  has  been  af- 
firmed by  the  authorities  where  the  debt  or  debts  were  barred  by  the  statute  of 
limitations  at  the  time  the  testator  executed  his  will.  2  Redfleld,  Wills  (3d 
Ed.)  161 ;  Williamson  v.  Naylor,  3  You.  &  Coll.  Ex.  208 ;  Turner  v.  Martin,  7 
De  G..  M.  &  G.  429;  Phillips  v.  Phillips.  3  Hare,  281;  Ward  v.  Bush.  59  N.  J. 
Eq.  144  [45  Atl.  534]."  Jordan,  J.,  in  Ballard  v.  Camplin,  161  Ind.  16,  21, 
22,  67  N.  E.  505,  507  (1903).  See,  also,  Stevens  v.  King,  [1904]  2  Ch.  30.  On 
statutes  to  prevent  lapses,  see  2  L.  R.  A.  (N.  S.)  580,  note. 

5  0  "While  the  term  'advancement'  is  generally  used  in  cases  of  intestacy,  the 
term  is  also  used  as  applicable  to  cases  of  wills.  Where  in  either  event  the  in- 
tention is  clear  that  the  sums  advanced  should  be  deducted  from  the  amounts 
due  the  devisee  under  a  will,  or  heir  in  case  of  intestacy,  that  intention  must 
prevail."  Grant,  J.,  in  In  re  Bresler's  Estate,  155  Mich.  567,  at  page  575,  119 
N.  AV.  1104,  at  page  1107.    On  advancements  to  heirs,  see  12  L.  R.  A.  566,  note. 

"A  legacy  is,  strictly  speaking,  adeemed  (from  adimere,  to  take  away)  when 
the  thing  given  has.  by  some  act  of  the  testator,  ceased  to  exist  in  the  form  in 
which  it  is  described  in  the  will,  so  that  on  his  death  there  is  nothing  answer- 
ing the  description  of  the  legacy  to  be  given  to  the  legatee.  *  *  *  ^  gjuj. 
ilar  result  follows  where  the  testator  performs  the  function  of  an  executor, 
by  giving  during  his  lifetime  what  he  intended  the  legatee  to  have  by  his  will, 
thereby  satisfying  the  legacy  himself,  leaving  nothing  for  the  executor  to  do 
in  respect  of  such  legacy.  The  distinction  between  the  ademption  and  satis- 
faction of  legacies  seems  clear  enough,  but  it  is  not  generally  observed ;  the 
term  'ademption'  being  applied  indiscriminately  to  cases  where  the  legacy  is 
cut  off  by  the  destruction  or  alteration  of  the  subject,  and  where  it  is  sat- 
isfied by  the  delivery  of  the  subject  to  the  legatee  during  the  testator's  life- 
time." 2  Woenier's  American  Law  of  Administration  (2d  Ed.)  973,  §  446.  On 
the  ademption  of  legacies,  see  05  Am.  St.  Rep.  342,  note. 

51  The  statement  of  facts  is  omitted. 


Ch.    4)  PAYMENT  OF   LEGACIES  AND    SHARES.  723 

him  surviving,  and  seised  of  certain  real  estate  in  this  state  which  de- 
scended to  said  heirs,  and  possessed  of  certain  personal  estate  which 
remains  for  distribution  among  them;  that  said  Silas,  in  his  lifetime, 
conveyed  and  caused  to  be  conveyed  to  said  Azariah  and  to  said  Philip 
respectively,  by  way  of  advancements,  and  with  the  intention  of  pro- 
viding for  the  complainant  out  of  the  remainder  of  his  estate,  certain 
real  estate ;  that  said  Azariah  and  said  Philip,  at  the  time  of  making 
said  advancements,  were,  and  still  are,  infants,  and  that  said  Silas  died 
without  providing  for  complainant ;  that  one  Binckley  is  administrator 
of  the  estate  of  said  Silas,  and  has  in  his  hands  said  personal  estate 
for  distribution. 

The  bill  makes  said  Azariah,  Philip  and  Elizabeth,  and  said  Bmck- 
ley,  defendants,  and  prays  that  said  Azariah  and  Philip  be  compelled 
to  bring  into  hotchpot  with  the  estate  of  said  Silas  their  respective 
advancements,  or  be  barred  from  participating  as  heirs  in  the  said  es- 
tate.   Upon  the  hearing  the  court  dismissed  the  complainant's  bill. 

Without  referring  to  the  evidence,  which  appears  sufficient  to  entitle 
the  complainant  to  a  decree,  if  the  facts  alleged  entitle  him  to  equitable 
relief,  we  proceed  to  examine  the  legal  and  equitable  questions  involved. 

Our  statute  provides  that,  "where  any  of  the  children  of  a  person 
dying  intestate,  or  their  issue,  shall  have  received  from  such  intestate, 
in  his  lifetime,  any  real  or  personal  estate,  by  way  of  advancement, 
and  shall  desire  to  come  into  the  partition  or  distribution  of  such  estate 
with  the  other  parceners  or  distributees,  such  advancement,  both  of 
real  and  personal  estate,  shall  be  brought  into  hotchpot  with  the  whole 
estate,  real  and  personal,  of  such  intestate;  and  every  person  so  re- 
turning such  advancement,  as  aforesaid  shall  thereupon  be  entitled  to 
his  or  her  just  proportion  of  said  estate."    St.  1856,  p.  1201. 

This  provision  is  in  harmony  with  the  ancient  customs  of  certain 
localities,  and  with  the  common  law  generally  of  England,  with  regard 
to  lands  descended  in  coparcenary,  existing  at  the  time  of  the  settle- 
ment of  the  American  colonies,  and  with  the  subsequent  statute  of  dis- 
tributions of  22  and  23  Charles  the  Second.  Bacon's  Abr.  title  "Co- 
parceners," E. ;  Id.  title  "Uses  and  Trusts,"  D ;  Id.  title  "Executors 
and  Administrators,"  K;  Williams  on  Ex'rs,  907;  Id.  916  to  924;  2 
Kent's  Com.  420,  421,  and  422. 

The  principle  of  the  English  statute  is  equality  of  distribution  of  the 
ancestor's  personal  estate  among  his  children  and  their  descendants;, 
and  such  is  the  object  and  purpose  of  our  statute,  including  both  the 
real  and  personal  estate  of  the  ancestor. 

An  advancement  is  the  giving  by  the  intestate,  in  his  lifetime,  by 
anticipation,  the  whole  or  a  part  of  what  it  is  supposed  the  donee  will 
be  entitled  to  on  the  death  of  the  party  making  it.  And  according  to 
the  decisions  under  the  English  and  similar  American  statutes,  the 
ancestor  must  have  died  intestate ;  the  gift  must  have  been  made 
in  his  lifetime,  and  completely  executed  on  his  part,  with  the  inten- 
tion that  the  same  should  be  the  child's  portion  of  his  estate,  or  a  part 


724  PROBATE  AND    ADMINISTRATION.  (Part    3 

of  such  portion;  the  gift  to  the  child  or  heir,  made  in  the  lifetime  of 
the  intestate  ancestor,  is  prima  facie  an  advancement,  and  is  to  be 
treated,  in  case  the  party  to  whom  the  advancement  was  made  comes 
in  for  his  distributive  share  with  his  coheirs,  as  a  debt  due  from  him 
to  the  estate,  and  may  be  deducted  out  of  his  share  of  the  entire  es- 
tate so  brought  together,  if  such  share  be  sufficient  for  that  purpose ; 
the  widow  takes  her  share  of  the  personal  estate,  and,  of  course,  her 
dower  in  the  lands,  without  regard  to  advancements,  and  the  balance 
only,  after  deducting  the  widow's  share,  is  treated  as  estate  for  dis- 
tribution ;  the  child  advanced  or  provided  for  will  be  entitled  to  par- 
ticipate with  his  coheirs  in  the  estate  for  distribution  only  upon  bring- 
ing in  what  he  has  received  by  way  of  advancement,  and  taking,  with 
them,  of  the  whole  estate  so  united,  his  equal  portion ;  and  the  prop- 
erty or  money  advanced  need  not  be  returned  in  specie  or  kind,  but  is 
to  be  estimated  according  to  its  value  at  the  time  the  advancement  was 
made,  and  the  heir  so  advanced  and  coming  in  will  be  entitled  to  his 
equal  share  of  the  whole,  deducting  the  value  of  the  advancement.  2 
P.  Williams,  440 ;  Bacon's  Abr.  title  "Executors  and  Administrators," 
K;  Id.  title  "Uses  and  Trusts,"  D;  WilHams  on  Ex'rs,  pp.  916  to 
924;  2  Story's  Eq.  Juris.  §§  1202  to  1206;  Jackson  v.  Matsdorf,  11 
Johns.  (N.  Y.)  91,  6  Am.  Dec.  355;  Bemis  v.  Stearns,  16  Mass.  200; 
Osgood  V.  Reed,  17  Mass.  356 ;  Elliot  v.  Collier,  1  Ves.  16 ;  3  Atk. 
259  ;  8  Ves.  55  ;  Stearns  v.  Stearns,  1  Pick.  (Mass.)  157. 

These  rules,  adopted  by  the  courts  in  the  construction  and  enforce- 
ment of  a  statute  subsequently  substantially  incorporated  into  our  law 
by  legislative  enactment,  and  consistent  with  the  evident  spirit  and 
policy  of  the  latter  statute,  are  presumed  to  have  been  in  the  mind  of 
the  Legislature  at  the  time  of  its  adoption,  and  control  its  construc- 
tion. Campbell'  v.  Quinlin,  3  Scam.  289 ;  Rigg  v.  Wilton,  13  111.  15, 
54  Am.  Dec.  419. 

The  heir  advanced  may,  if  he  choose,  retain  what  he  has  received, 
but  if  he  does  he  must  be  content,  and  relinquish  all  claim  of  par- 
ticipation with  his  coheirs  in  the  distribution  or  partition  of  the  an- 
cestor's estate. 

Necessarily,  therefore,  it  is  for  him  to  elect  whether  he  will  retain 
what  has  been  advanced  to'  him,  and  relinquish  all  right  in  the  estate 
descended  and  for  distribution,  or  will  return  or  account  for  the  ad- 
vancement, and  take  of  the  entire  estate  commingled,  equally  with  the 
other  heirs. 

Infants,  for  want  of  legal  capacity,  cannot  exercise  this  power  and 
right  of  election,  and  these  infant  defendants  must  be  excluded  from 
partaking  in  the  distribution  in  this  case,  or  the  estate  must  remain  in 
the  hands  of  the  administrator  until  they  arrive  at  full  age,  unless  equity 
will  interpose,  and,  upon  ascertaining  what  would  be  most  beneficial 
for  them  under  the  facts,  exercise  for  them  this  power. 

A  party  entitled  to  one  only  of  several  things,  at  his  election,  where 
other  rights  are  involved,  must  exercise  such  right  of  election  in  a 


Ch.    4)  PAYMENT   OF   LEGACIES   AND    SHARES.  725 

reasonable  time,  and  if  he  does  not,  or  cannot  for  want  of  legal  ca- 
pacity, in  favor  of  other  parties  in  interest,  equity  will  do  it  for  him, 
or  bar  him  from  a  future  exercise  of  the  right.  2  Story's  Eq.  Jurisp. 
c.  30. 

Courts  of  equity  have  a  paramount  jurisdiction  in  cases  of  admin- 
istration and  the  settlement  of  estates,  and  may  control  courts  of  law 
in  their  action  in  the  settlement  and  distribution  of  estates.  1  Story's 
Eq.  Jurisp.  c.  9 ;  Williams  on  Ex'rs,  pp.  1239,  1240 ;  Lynch  v.  Rotan, 
39  111.  19;  Freeland  v.  Dazey,  25  111.  296;  Townsend  v.  RadcHffe  (de- 
cided June  term,  1867)  44  111.  446. 

They  have,  also,  a  similar  and  plenary  jurisdiction  over  the  persons 
and  estates  of  infants,  and  will,  in  the  exercise  of  that  jurisdiction, 
cause  to  be  done  whatever  may  be  necessary  to  preserve  their  estates 
and  protect  their  interests.  2  Story's  Eq.  Jurisp.  c.  35  ;  Cowls  v.  Cowls, 
3  Oilman,  435,  44  Am.  Dec.  708.  In  this  case,  if  the  value  of  the  ad- 
vancements respectively  does  not  exceed  the  share  of  the  heir  in  the 
whole  personal  estate  for  distribution  among  the  heirs,  including  the 
advancements,  and  the  court  upon  a  further  hearing  shall  find  it  ben- 
eficial to  the  infant  defendants  to  take  their  distributive  shares  and 
portions  of  the  entire  estate,  instead  of  retaining  their  respective  ad- 
vancements, it  will  not  be  necessary  to  touch  the  real  estate  descended, 
but  the  advancement  may  be  deducted  from  the  share  of  the  party  to 
whom  it  was  made ;  otherwise,  in  order  to  do  complete  equity  to  all,  it 
may  be  necessary  to  make  partition  of  such  real  estate,  after  disposing 
of  the  personal  estate,  according  to  the  rights  of  the  parties ;  and  for 
that  purpose  it  may,  perhaps,  be  necessary  for  the  complainant  to 
amend  his  bill. 

Decree  reversed  and  cause  remanded.     Decree  reversed."' 

B2  "Hotelipot  is  the  bringing  into  the  estate  of  an  intestate  an  estimate  of 
the  value  of  advancements  made  by  the  intestate  to  his  or  her  children,  in 
order  that  the  whole  may  be  divided  in  accordance  vpith  the  statute  of  de- 
scents. Where  those  who  have  received  advancements  decline  to  bring  the 
same  into  hotchpot  when  legally  required  to  do  so.  they  may  in  proper  pro- 
ceedings be  excluded  from  participation  in  the  division  of  the  property  of  the 
intestate  under  the  statute  of  descents."  Whitefield,  C.  J.,  in  Lindsley  v.  Mc- 
Iver,  57  Fla.  466,  48  South.  628  (1909). 

On  bringing  into  hotchpot,  see  80  Am.  Dec.  565,  note.  A  child  bringing  an 
advancement  into  hotchpot  should  be  charged  with  its  value  "without  interest, 
the  general  rule  being,  as  is  well  settled,  that  advancements  do  not  bear  inter- 
est." Cardwell.  J.,  in  McCoy  v.  McCoy,  105  Va.  829,  840,  54  S.  E.  995.  999 
(1906).  That  collateral  kindred  do  not  have  to  bring  into  hotchpot  property 
given  them  is  held  in  Johnson  v.  Antriken,  205  Mo.  244,  103  S.  W.  936  (1907). 

In  Hackleman  v.  Hackleman,  199  111.  84,  92,  65  N.  E.  113,  116  (1902),  the 
court  said:  "The  father  in  his  lifetime,  by  an  arrangement  in  the  nature  of  a 
family  settlement,  designated  certain  of  his  real  estate  as  the  separate  prop- 
erty of  each  of  his  three  children.  The  children  acquiesced  in  the  arrange- 
ment and  each  of  them  entered  into  the  actual  possession  of  the  lands  so  al- 
lotted to  them  respectively.  Their  rights,  after  the  death  of  the  father,  ought, 
in  justice  and  fairness,  to  be  the  same  as  if  they  had  inherited  the  lands  in 
common  and  afterwards  made,  by  parol,  the  same  allotment  that  their  father 
made  during  his  lifetime  and  in  which  they  each  acquiesced.  We  know  of  no 
equitable  reason  or  rule  why  a  decree  should  not  be  granted  securing  to  the 


726  PROBATE   AND    ADMINISTRATION.  (Part   3 

ELLIOT  V.  WILSON  et  ux. 
CSupreme  Court  of  Missouri,  1889.    98  Mo.  379,  11  S.  W.  739.) 

Black,  J.^'  Henry  Elliot  died  intestate,  leaving  a  widow  and  two 
children,  namely,  Mary,  the  wife  of  John  A.  Wilson,  and  Albert  El- 
liot. At  the  final  settlement  of  the  estate  there  was  in  the  hands  of 
the  administrator  the  sum  of  $1,794.25.  Other  sums  had  been  paid  by 
himx  to  the  widow  and  children  during-  the  course  of  the  administra- 
tion. During  the  lifetime  of  the  deceased  he  conveyed  to  his  daugh- 
ter, Mary,  325  acres  of  land,  and  the  deed  contains  a  recital  to  the 
effect  that  she  is  to  be  charged  therefor,  as  an  advancement,  with  the 
sum  of  $11,200.  The  deceased  advanced  her  money  and  personal 
property  in  the  further  sum  of  $1,000.  He  conveyed  to  his  son,  Al- 
bert, lands  by  way  of  an  advancement  to  the  amount  of  $9,205.  The 
deceased  left  400  or  500  acres  of  land,  which  has  been  divided  between 
the  children  and  the  widow,  the  latter  having  elected  to  take  a  child's 
part.  Albert  filed  in  the  probate  court  a  petition  setting  up  these 
facts,  asking  that  he  and  his  sister  be  charged  with  these  advancements 
in  real  and  personal  property,  and  that  the  final  distribution  be  made 
on  that  basis.  The  probate  court  made  an  order  in  accordance  with 
the  prayer  of  the  petition.     *     *     * 

The  contention  on  the  part  of  the  plaintiffs  in  error  is  that  advance- 
ments can  be  brought  into  hotchpot  in  the  partition  of  real  estate  only, 
whether  made  in  real  or  personal  property,  and  that  the  probate  court, 
in  ordering  the  distribution  of  the  personal  estate  in  the  hands  of  the 
administrator,  cannot  consider  advancements.  The  subject  of  ad- 
vancements is  regulated  by  statute  in  this  and  perhaps  all  of  the  states 
of  this  Union.     *     *     * 

Our  statute,  therefore,  must  be  our  guide.  It  is  in  these  words : 
"When  any  of  the  children  of  the  intestate  shall  have  received,  in  his 
lifetime,  any  real  or  personal  estate  by  way  of  advancement,  shall 
choose  to  come  into  partition  with  the  other  parceners,  such  advance- 
ment shall  be  brought  into  hotchpot  with  the  estate  descended."  Sec- 
tion 2166,  Rev.  St.  1879.  It  is  argued  that  ati  "estate  descended"  can 
only  mean  real  estate,  as  the  personal  property  goes  to  the  administra- 
tor, and  that  the  term  "parceners"  has  also  a  common-law  meaning, 
and  applies  only  to  lands  descended  by  inheritance ;  and  it  is  with  these 
definitions  of  the  terms  that  the  conclusion  is  reached  contended  for 
by  plaintiffs  in  error,  namely,  that  the  advancements  can  only  be  con- 
sidered in  the  partition  of  the  real  property  descended. 

appellant  the  same  relief  that  would  have  been  given  him  had  he  and  his 
brother  and  sister  inherited  the  lands  as  co-tenants  and  made  parol  partition 
after  the  death  of  their  father." 

By  statute  in  some  states  written  evidence  that  a  gift  is  made  as  an  ad- 
vancement is  required.  For  a  construction  of  such  a  statute,  see  Elliott  v. 
Western  Coal  &  M.  Co.,  243  111.  614.  90  N.  E.  1104  (1910). 

6  3  Part  only  of  the  opinion  is  given. 


Ch.    4)  PAYMENT   OF   LEGACIES   AND    SHARES.  727 

There  is  a  sense  in  which  it  may  be  said  the  personal  property  goes 
to  the  administrator.  He  must  inventory  the  same,  and  such  property 
constitutes  the  primary  fund  out  of  which  the  debts  are  paid.  But  un- 
der our  law  he  has  no  personal  interest  in  the  property.  He  takes  for 
the  sole  purpose  of  administration.  When  the  debts  are  paid,  if  there 
is  personal  property  on  hand,  and  it  is  susceptible  of  division  in  kind, 
it  must  be  "partitioned"  by  and  under  the  proceeding  pointed  out  in 
the  administration  law.  Sections  246,  247,  Rev.  St.  1879.  The  heirs 
take  this  surplus  of  personal  property  by  virtue  of  such  a  partition, 
without  any  bill  of  sale  or  other  transfer  from  the  administrator;  so 
that  it  is  not  improper  at  all  to  say  that  personal  property  descends. 
But  it  is  useless  to  discuss  definitions  of  the  terms  "estate  descended," 
"parcenary,"  and  "partition."  The  legislature  could  make  its  own 
definitions,  and  it  has  done  so  in  clear  terms. 

The  first  section  of  our  statute  concerning  descents  and  distribu- 
tions (section  2161)  provides  that  when  any  person  having  title  to 
any  real  or  personal  estate  shall  die  intestate  as  to  such  estate  "it 
shall  descend,  and  be  distributed  in  parcenary  to  his  kindred,  male 
and  female,  subject  to  the  payment  of  his  debts  and  the  widow's  dow- 
er, in  the  following  course."  The  course  of  descent  is  then  pointed 
out,  and  it  is  the  same  as  to  both  real  and  personal  property.  And 
then  follows  the  section  before  quoted,  relating  to  advancements.  It 
will  be  seen  that  personal  property,  does  descend  to  the  heirs,  subject 
only  to  the  payment  of  the  debts  and  the  widow's  dower.  And  so,  too, 
the  personal  property  is  distributed  in  parcenary.  In  these  respects 
no  distinction  whatever  is  made  between  real  and  personal  property. 
If  a  child  has  been  advanced  by  either  real  or  personal  property,  or 
money,  his  share  in  the  personal  and  in  the  real  estate  must  abate  by 
the  amount  of  the  advancement.  In  other  words,  the  children  must 
be  made  equal,  and  it  matters  not  whether  this  equality  be  brought 
about  in  the  partition  of  the  real  estate  or  the  distribution  or  partition 
of  the  personal  property.  Cases  may  arise  where  it  will  be  necessary 
to  take  an  account  of  advancements  in  the  division  of  both  the  real  and 
personal  property.     *     *     * 

We  have  said  that  bringing  into  hotchpot  under  our  statute  does  not 
mean  that  the  property  or  money  advanced  shall,  in  kind  or  specie,  be 
thrown  in  with  the  property  which  has  descended,  but  it  is  to  be  esti- 
mated and  charged  against  the  party  according  to  its  value  at  the  time 
the  advancement  was  made.  Ray  v.  Loper,  65  Mo.  470.^*  The 
party  advanced  does  not  relinquish  his  title  to  the  particular  property 

54  "Property  that  has  been  advanced  to  a  distributee  will  ordinarily  be  es- 
timated at  its  value  at  the  time  the  advancement  was  made,  in  the  absence  of 
a  statute  to  the  contrary.  However,  if  the  gift,  when  made,  was  revocable  or 
unenforceable,  or  if  the  donor  remained  in  the  possession  and  enjojnient  of  the 
property,  then  the  value  of  the  property  is  to  be  estimated  as  of  the  time  when 
the  gift  became  irrevocable  or  enforceable,  or  when  the  donee  acquired  pos- 
session of  it,  regardless  of  the  time  when  the  actual  transfer  occurred."  14 
Cyc.  177,  178. 


728  PROBATE  AND    ADMINISTRATION.  (Part   3 

by  bringing  it  into  hotchpot,  but  it  is  brought  in  for  the  purpose  of 
being  taken  into  consideration  in  making  the  parties  equal  in  the  es- 
tate. Jackson  V.  Jackson,  28  Miss.  674,  64  Am.  Dec.  114.  The  court 
does  not  deal  with  the  land  advanced,  but  only  with  the  value  of  it. 
So  far  as  the  jurisdiction  of  the  probate  court  is  concerned,  it  can, 
therefore,  make  no  difference  whether  the  advancement  was  by  way 
of  land,  money,  or  specific  personal  property,  for  it  is  with  the  amount 
only  of  the  advancement  that  the  court  deals.     *     *     * 

The  powder  to  make  distribution  includes  the  power  to  take  account 
of  all  matters  necessary  to  be  considered  in  the  ascertainment  of  the 
shares,  and  this  includes  the  taking  an  account  of  the  advancements, 
whether  made  by  way  of  real  or  personal  property.  Doubtless  the 
parties  may  be  equalized  in  the  partition  of  real  estate,  but  they  may 
also  be  made  equal  in  the  division  of  the  personal  property  by  the 
probate  court.     *     *     ♦ 

The  judgment  of  the  Kansas  City  Court  of  Appeals  is  reversed,  and 
the  cause  is  remanded  to  that  court,  with  directions  to  affirm  the  judg- 
ment of  the  circuit  court.    All  concur.'** 


HILTON  V.  HILTON. 
(Supreme  Judi'cial  Ck)urt  of  Maine,  1007.    103  Me.  92,  68  Atl.  595.) 
See  ante,  p.  486,  for  a  report  of  the  case. 


AMETRANO  v.  DOWNS. 

(Court  of  Appeals  of  New  York,  1902     170  N.  Y.  388,  63  N.  E.  340,  58 
L.  R.  A.  719,  88  Am.   St.  Rep.  671.) 

CuLLEN,  J.  On  August  7,  1884,  Margaret  Shelley,  now  deceased, 
received  by  conveyance  from  her  husband  through  an  intermediary 
an  undivided  one-half  in  the  premises  known  as  number  22  Oliver 
street,  in  the  city  of  New  York.  On  March  12,  1891,  she  executed  the 
following  will: 

5  6  "The  classes  of  property  that  are  chargeable  with  advancements  depend 
largely  upon  the  statutes  directing  descents.  In  some  states  advancements  of 
personal  estate  will  first  be  charged  against  the  personal  estate  of  the  intes- 
tate to  which  the  donee  Is  otherwise  entitled,  and  advancements  of  real  es- 
tate first  be  charged  against  his  distributive  share  of  the  intestate's  real  es- 
tate. If  the  statute  excludes  the  blending  of  real  and  personal  estate,  then  an 
advancement  will  be  charged  against  his  distributive  share  of  only  that  class 
of  the  intestate's  estate  to  which  the  advancement  belongs,  and  he  will  not 
be  excluded  from  receiving  his  distributive  share  in  the  other  class  of  estate; 
but  where  the  statute  does  not  show  an  intent  to  charge  advancements  first 
or  altogether  upon  the  class  of  property  received,  an  advancement  of  realty 
will  be  charged  against  personal  estate,  or  an  advancement  of  personalty  will 
be  charged  against  real  estate,  so  as  not  to  allow  the  inheritance  of  any  of  the 
heirs  to  be  diminished."    14  Cyc.  ISO,  181. 


Ch.    4)  PAYMENT   OF   LEGACIES  AND    SHARES.  729 

"I,  Margaret  Shelley,  of  the  city,  county  and  state  of  New  York 
being  of  sound  disposing  mind  and  memory,  do  hereby  make,  publish 
and  declare  this  to  be  my  last  will  and  testament. 

"First.  I  order  and  direct  my  funeral  expenses  to  be  paid  as  soon 
as  shall  be  convenient  after  my  decease. 

"Second.  I  give,  devise  and  bequeath  my  one-half  interest  m  the 
building  known  as  number  twenty-two  (22)  Oliver  street,  in  the 
Fourth  ward  of  the  city  of  New  York,  unto  my  daughter  Lizzie,  wife 
of  Emanuel  Ametrano,  of  the  city  of  Brooklyn,  county  of  Kmgs,  state 
of  New  York,  and  to  her  heirs  and  assigns  forever. 

"I  nominate,  constitute  and  appoint  Patrick  J.  Murphy,  of  the  city 
of  New  York,  and  Charles  Henry  Hawkins,  of  the  same  place,  or 
either  of  them,  as  executor  of  this  my  last  will  and  testament. 

"In  witness  whereof,  I  have  hereunto  set  my  hand  and  seal  this 
12th  day  of  March,  in  the  year  of  our  Lord  one  thousand  eight  hun- 
dred and  ninety-one."  . 

In  1896  condemnation  proceedings  were  taken  by  the  city  of  New 
York  to  acquire  said  number  22  Oliver  street  as  a  site  for  the  erection 
of  a  schoolhouse.  To  these  proceedings  Margaret  Shelley  was  not 
made  a  party.  The  net  amount  of  the  award  after  the  satisfaction  of 
the  incumbrances  on  the  property,  amounting  to  $9,800,  was  in  Feb- 
ruary 1897,  paid  to  her  husband,  Michael  Shelley,  who  thereupon 
deposited  one-half  of  the  award,  $4,900,  in  the  Washington  Trust 
Company  to  the  credit  of  his  wife  as  her  share  of  the  property.  In 
1898  Margaret  Shelley  drew  the  accrued  interest  on  the  deposit  and 
$400  on  account  of  the  principal.  She  died  in  February,  1899,  leaving 
an  estate  consisting  entirely  of  personalty.  The  plaintiff  is  the  devisee 
named  in  the  will  as  well  as  the  administrator  of  the  estate  of  the  de- 
ceased, and  in  this  action  which  is  for  a  settlement  of  her  accounts, 
claims  that  she  is  entitled  under  the  will  to  the  fund  received  by  the 
testator  in  the  condemnation.  She  has  been  defeated  in  this  claim  by 
both  the  courts  below  and  now  appeals  to  this  court. 

The  able  opinion  of  the  learned  Appellate  Division  deals  so  fully 
with  the  question  in  dispute  that  there  remains  but  little  to  be  added 
by  us.  Had  the  deceased  voluntarily  alienated  her  property  by  deed 
it  is  entirely  clear,  under  the  authorities  in  this  state,  that  the  devisee 
would  have  no  claim  to  the  proceeds  of  the  sale.  Adams  v.  Winne, 
7  Paige,  97;  Beck  v.  McGillis,  9  Barb.  35;  Gilbert  v.  Gilbert,  9  Barb. 
532;  Vandemark  v.  Vandemark,  26  Barb.  416;  Philson  v.  Moore,  23 
Hun,  152;  McNaughton  v.  McNaughton,  34  N.  Y.  201.  "If  a  testa- 
trix devises  real  estate  and  sells  the  same  before  the  will  takes  effect, 
the  proceeds  of  the  sale  will  become  personal  estate,  and  no  court  can 
substitute  the  money  received  by  the  testatrix  for  the  land  devised." 
In  Adams  v.  Winne,  supra,  and  Beck  v.  McGillis,  supra,  the  testator 
had  taken  back  a  mortgage  on  the  devised  land  as  security  for  the 
purchase  money,  yet  it  was  held  that  the  devisee  was  not  entitled  to 
the  mortgage.     The  only  point  to  be  considered  therefore,  is  whether 


730  PROBATE   AND    ADMINISTRATION.  (Part    3 

a  different  rule  obtains  in  the  case  of  involuntary  alienation,  by  opera- 
tion of  law,  from  that  which  prevails  on  a  voluntary  sale.  Mr.  Jar- 
man  asserts  that  the  rule  is  the  same  in  both  cases,  and  the  English 
decisions  cited  by  him  sustain  the  doctrine  of  the  text.  Jarman  on 
Wills,  p.  163. 

We  see  no  such  difference  between  a  voluntary  and  an  involuntary 
sale  of  the  devised  land  as  justifies  a  distinction  in  principle  in  the 
application  of  the  rule  that  where  the  testator  has  parted  with  the  sub- 
ject of  the  devise,  all  claim  of  the  devisee  is  lost.  While  there  is  no 
authority  on  the  point  in  this  state  (there  is  said  to  be  none  in  the 
country),  the  question  presented  is  not  without  analogy  in  the  rule 
which  determines  in  cases  of  intestacy  the  character  of  the  proceeds 
of  sales  by  operation  of  law,  whether  they  are  to  be  considered  as  real 
or  personal  property.  It  is  settled  by  a  number  of  authorities  that  if 
the  sale  be  made  by  execution  or  judicial  decree  in  the  lifetime  of  the 
intestate  the  proceeds  are  personalty  and  go  to  the  next  of  kin,  while 
if  made  after  his  death  they  are  real  estate  and  go  to  the  heirs  at  law 
(Graham  v.  Dickinson,  3  Barb.  Ch.  169;  Denham  v.  Cornell,  67  N.  Y. 
556),  except  where  the  property  belongs  to  an  infant  or  to  an  incom- 
petent person,  in  which  case  the  proceeds  retain  their  original  char- 
acter of  realty.  Sweezy  v.  Thayer,  1  Duer,  286 ;  Horton  v.  McCoy,  47 
N.  Y.  21. 

It  is  urged  by  the  learned  counsel  for  the  appellant  that  the  con- 
demnation proceedings  did  not  eft'ect  the  revocation  of  the  will,  be- 
cause there  was  no  "other  writing  of  the  testator,  declaring  such  revo- 
cation or  alteration,  and  executed  with  the  same  formalities  with 
which  the  will  itself  was  required  by  law  to  be  executed"  (2  Rev.  St. 
64,  §  42),  nor  any  settlement,  deed  or  other  act  by  the  testator  (sec- 
tion 47).  It  may  be  conceded  that  there  was  no  revocation  of  Mrs. 
Shelley's  will,  though  I  very  much  doubt  whether  the  deceased  was 
not  divested  of  title  by  her  own  voluntary  act.  As  she  was  not  a  party 
to  the  condemnation  proceedings  they  were  without  force  or  effect  as 
to  her.  If  she  lost  her  title  it  was  because,  by  her  voluntary  accept- 
ance of  the  award,  she  estopped  herself  from  claiming  the  property. 

Be  this  as  it  may,  the  case  does  not  fall  within  the  Statute  of  Wills. 
A  specific  devise  or  specific  legacy  rnay  not  be  revoked,  but  unless  the 
property  devised  or  the  thing  bequeathed  is  found  in  the  estate  of  the 
testator  at  the  time  of  his  decease  the  will  is,  necessarily,  inoperative. 
The  testatrix  could  not  devise  to  the  appellant  an  undivided  half  of  the 
premises  number  22  Oliver  street,  for  she  did  not  own  it  at  her  de- 
cease, and  the  question  here  presented  is  not  whether  the  devisee  shall 
receive  the  property  devised,  but  whether  she  shall  receive  the  fund 
which  proceeded  from  the  condemnation  of  that  property.  With  this 
latter  question  the  Statute  of  Wills  does  not  deal.  It  does  not  pro- 
vide affirmatively  that  a  conveyance  or  other  disposition  of  bequeathed 
or  devised  property  shall  render  the  will  in  that  respect  ineffective ;  it 
assumes  that  principle,  and  in  sections  45,  46  and  47  merely  limits  the 


Ch.    4)  PAYMENT  OF   LEGACIES  AND    SHARES.  731 

Operation  of  the  rule  by  providing  that  in  three  cases,  to  wit,  an  ex- 
ecutory contract,  an  incumbrance  or  mortgage  and  a  conveyance  or 
deed  altering  the  testator's  estate,  but  not  wholly  divesting  his  title, 
the  devise  shall  be  revoked  only  pro  tanto.  As  said  by  the  Chan- 
cellor in  Adams  v.  Winne,  supra,  it  left  unchanged  the  existing  law 
"that  when  the  testator  had  converted  real  estate,  which  he  had  de- 
vised as  such,  into  personalty,  or  had  converted  the  subject  of  a  spe- 
cific bequest  of  personal  property  into  real  estate,  there  was  a  revoca- 
tion of  the  will  or  an  ademption  of  the  bequest."  The  correctness  of 
this  doctrine  has  never  been  challenged. 

The  judgment  appealed  from  should  be  affirmed,  with  costs  to  both 
parties  payable  out  of  the  estate. 

Judgment  affirmed.' 


50 


In  re  TILLINGHAST. 
(Supreme  Court  of  Rhode  Island,  1901.     23  R.  I.  121,  49  Atl.  634.) 
Petition  for  construction  of  a  will.    The  facts  are  fully  stated  in  the 

opinion. 

Blodgett,  J.  Upon  the  agreed  statement  of  facts  three  questions 
arise  under  the  fifth  clause  of  the  will  of  Ellen  M.  Perry,  late  of  Bris- 
tol, deceased,  concerning  the  disposition  of  the  sum  of  $8,259.07,  the 
cash  balance  now  in  the  hands  of  the  executor.  The  clause  in  ques- 
tion is  as  follows : 

56  See  In  re  Slater,  [190G]  2  Ch.  480;  In  re  Donsett,  [1901]  1  Ch  398.  Com- 
pare In  re  Freer.  22  Ch.  D.  622  (1882)  ;   In  re  ^Yood,  [1894]  2  Ch.  5<  i. 

"Where  the  law  recognizes  a  power  of  implied  revocation  by  acts  of  tiie 
testator  similar  to  those  which  must  result  in  ademption,  there  may  m  some 
cases  be  no  distinction  between  ademption  and  revocation ;  but  m  this  state 
where  such  implied  revocation  is  forbidden  by  statute,  the  clauses  of  a  will 
containing  a  bequest  are  not  revoked  by  acts  which  may  operate  as  an  ademp- 
tion but  l-emain  as  the  legal  declaration  of  the  testator's  intention  to  be  car- 
ried out  unless  the  execution  after  his  death  is  impossible ;  and  so  a  present 
^ift  of  a  part  onlv  of  a  te.stamentary  bequest,  or  a  sale  or  conveyance  to  a 
third  party  of  a  part  only  of  property  specifically  bequeathed,  does  not  pre- 
vent the  execution  of  the  testator's  intention  as  to  the  remainder,  and  the 
ademption  is  not  total,  but  pro  tauto."  Hamersley,  J.,  in  Jacobs  v.  Button,  79 
Conn.  3<>0.  365,  65  Atl.  150.  152  (1906).  u     ^u     *    ^.  ^       v.   ^- 

"^'here  real  estate  devised  by  a  will  is  conveyed  away  by  the  testator  but 
before  his  death  is  reconveyed  to  him,  there  is  no  ademption  imder  modern 
statutes  allowing  after-acquired  realty  to  pass  by  will.  Woolery  v.  Woolery, 
48  lud.  523  (1874).  See,  also,  sections  XXIII,  XXIV,  of  the  Wills  Act  in  the 
Appendix,  post.  p.  765.     But  see  Phillippe  v.  Clevenger,  ante,  p.  290. 

"A  total  ademption  by  acts  of  a  testator  occurs  in  two  cases  only:  (1)  ^M^on 
he  <^ives  in  his  lifetime  to  a  legatee  what  he  has  left  him  in  his  will;  or  (2) 
when  before  his  death  he  so  deals  with  the  subject  of  the  bequest  as  to  ren- 
der it  impossible  to  effect  the  transfer  or  payment  which  the  will  directs." 
Baldwin,  J.,  in  Connecticut  T.  &  S.  Deposit  Co.  v.  Chase,  75  Conn.  683,  690,  55 
Atl.  171,  174  (1903). 

That  the  testator  has  agreed  with  a  corporation  to  take  its  note  for  some  of 
its  corpora  ue  stock  bequeathed  in  his  will  does  not  work  an  ademption,  where 
the  testator  dies  before  the  arrangement  is  carried  out,  is  held  in  In  re 
Frahm's  Estate,  Roddewig  v.  Steffen,  120  Iowa,  85,  94  N.  W.  444  (1903). 


732  PROBATE   AND    ADMINISTRATION.  (Part    3 

"Fifth.  Whereas  I  am  or  may  be  entitled  to  a  certain  interest  in 
the  estate  of  my  mother,  Ellen  M.  Dabney,  deceased,  which  is  now  in 
the  hands  of  the  Fidehty  Insurance,  Trust  and  Safe  Deposit  Company, 
Now  I  give,  devise,  and  bequeath  the  same  to  the  Fidelity  Insurance, 
Trust  and  Safe  Deposit  Company,  in  trust,  to  keep  the  same  invested, 
and  to  pay  the  net  income  thereof  to  my  husband,  Raymond  H.  Perry, 
for  the  term  of  his  natural  life,  and  upon  his  death  then  to  pay  the  in- 
come thereof  to  his  daughter,  Frances  Raymond  Perry,  for  the  term 
of  her  natural  life,  and  upon  her  death  then  to  hold  the  said  estate  in 
trust  upon  the  same  terms  of  trust  as  are  above  provided  for  in  the 
fourth  item  hereof  for  the  estate  over  which  I  have  a  power  of  ap- 
pointment under  the  will  of  my  said  father,  Charles  H.  Dabney." 

These  questions  are : 

(1)  Does  the  language  of  said  fifth  clause  constitute  a  specific  leg- 
acy? 

(2)  If  so,  has  such  legacy  been  in  whole  or  in  part  adeemed? 

(3)  Does  the  share  of  Mrs.  Perry  in  the  estate  of  her  sister,  Frances 
E.  Rhett,  come  within  the  provisions  of  said  fifth  clause  of  the  will  of 
Ellen  M.  Dabney? 

1.  We  are  of  the  opinion  that  the  bequest  under  consideration  is  a 
specific  bequest.  The  language  used  is  substantially  similar  to  the 
language  used  by  the  court  in  Dean  v.  Rounds,  18  R.  I.  437,  27  Atl. 
515,  28  Atl.  802,  as  constituting  a  specific  bequest.  It  absolutely  ap- 
propriates a  fund  clearly  defined,  and  for  a  long  time  invested  in  cer- 
tain securities  easily  capable  of  identification,  but  whose  exact  cash 
value  was  not  known,  to  one  definite  object.  It  was,  therefore,  an  ap- 
propriation of  the  fund  itself,  rather  than  an  attempt  to  measure  the 
gift  by  the  amount  of  an  uncertain  sum.  Towle  v.  Swasey,  106  Mass. 
106 ;  Bethune  v.  Kennedy,  1  Myl.  &  Cr.  114 ;  Stephenson  v.  Dowson, 
3  Beav.  349 ;  Shuttleworth  v.  Greaves,  4  Myl.  &  Cr.  37. 

2.  The  will  of  Ellen  M.  Perry  was  executed  on  July  28,  1898,  and 
she  died  on  May  28,  1899.  On  May  11,  1899,  she  executed  the  fol- 
lowing receipt  to  the  trustee  under  Mrs.  Dabney's  will,  as  follows : 

"Received  of  the  Fidelity  Insurance,  Trust  and  Safe  Deposit  Com- 
pany, trustee,  the  sum  of  eleven  thousand  five  hundred  and  fifty-eight 
and  ®^/ioo  dollars  in  kind  as  set  forth  in  the  schedule  hereunto  annexed, 
the  same  being  in  full  of  principal  and  income  awarded  to  me  as  per 
the  adjudication  filed  in  the  Orphans'  Court,  December  30th,  1898, 
upon  the  account  of  the  said  The  Fidelity  Insurance  and  Safe  Deposit 
Company,  trustee,  as  aforesaid.  [Signed]     Ellen  M.  Perry. 

"Witnesses  at  signing: 

"Nellie  De  Wolf  Archer. 
"Abram  O.  Powell." 

It  is  agreed  that  all  the  securities  therein  referred  to  were  then  de- 
livered to  Mrs.  Perry,  except  the  two  mortgages  on  property  in  Phila- 
delphia, which  were  duly  assigned  to  her  by  the  trust  company,  but 
which  she  directed  the  trust  company  to  retain  in  its  possession  and  to 


Ch.    4)  PAYMENT  OF  LEGACIES  AND    SHARES.  733 

proceed  to  collect  for  her  account.  It  is  conceded,  too,  that  with  the 
exception  of  these  mortgages  all  the  securities  enumerated  in  this 
schedule  were  converted  by  Mrs.  Perry  to  her  own  uses  in  her  life- 
time. We  are  consequently  of  the  opinion  that  the  legacy  was  thereby 
pro  tanto  adeemed,  since  the  specific  items  of  the  bequest  no  longer 
exist. 

In  Kenaday  v.  Sinnott,  179  U.  S.  606,  617,  21  Sup.  Ct.  233,  237,  45 
L.  Ed.  339,  decided  in  1900,  Chief  Justice  Fuller  says :  "The  satisfac- 
tion of  a  general  legacy  depends  on  the  intention  of  the  testator  as  in- 
ferred from  his  acts,  but  the  ademption  of  a  specific  legacy  is  effected 
by  the  extinction  of  the  thing  or  fund  bequeathed  and  the  intention  that 
the  legacy  should  fail  is  presumed." 

In  Tomlinson  v.  Bury,  145  Mass.  347,  14  N.  E-  137,  140,  1  Am.  St. 
Rep.  464,  decided  in  1887,  the  court  say: 

"A  specific  legacy  is  one  which  separates  and  distinguishes  the  prop- 
erty bequeathed  from  the  other  property  of  the  testator  so  that  it  can 
be  identified.  It  can  only  be  satisfied  by  the  thing  bequeathed;  if  that 
has  no  existence  when  the  bequest  would  otherwise  become  operative, 
the  legacy  has  no  effect.  If  the  testator  subsequently  parts  with  the 
property,  even  if  he  exchanges  it  for  other  property  or  purchases 
other  property  with  the  proceeds,  the  legatee  has  no  claim  on  the  estate 
for  the  value  of  his  legacy.  The  legacy  is  adeemed  by  the  act  of  the 
testator." 

This  doctrine  has  long  been  well  settled.  Indeed,  the  rule  as  to 
ademption  was  laid  down  very  clearly  by  Lord  Chancellor  Thurlow 
in  Humphreys  v.  Humphreys,  2  Cox,  185,  decided  in  1789,  as  follows : 

"That  the  only  rule  to  be  adhered  to  was  to  see  whether  the  subject 
of  the  specific  bequest  remained  in  specie  at  the  time  of  the  testator's 
death,  for  if  it  did  not,  then  there  must  be  an  end  of  the  bequest,  and 
that  the  idea  of  discussing  what  were  the  particular  motives  and  in- 
tention of  the  testator  in  each  case,  in  destroying  the  subject  of  the  be- 
quest, would  be  productive  of  endless  uncertainty  and  confusion."  And 
see  Stanley  v.  Potter,  2  Cox,  180. 

As  to  the  two  mortgages  aforesaid,  we  are  of  the  opinion  that  the 
mere  act  of  transferring  them  to  her  own  name  was  not  an  ademption 
of  them;  for  it  is  conceded  that  they  were  in  specie  at  the  time  of  her 
death,  and  the  exact  amount  of  their  proceeds  is  clearly  known  and  is 
held  by  the  executor  as  a  distinct  fund.  Lee  v.  Lee,  27  L.  J.  Ch.  824 ; 
Moore  v.  Moore,  29  Beav.  496;  Dingwell  v.  Askew,  1  Cox,  427; 
Clough  v.  Clough,  3  Myl.  &  K.  296 ;  Ashburner  v.  MacGuire,  2  Bro. 
C.  C.  108 ;  Barker  v.  Rayner,  5  Madd.  217,  affirmed  in  2  Russ.  122 ; 
Basan  v.  Brandon,  8  Sim.  171. 

It  is  true  that  these  securities  are  described  as  being  in  the  hands  of 
the  trust  company;  but  in  Prendergast  v.  Walsh,  58  N.  J.  Eq.  149, 
42  Atl.  1049,  decided  in  1899,  which  was  also  a  case  of  ademption,  the 
Vice  Chancellor  held  that  "the  place  of  deposit  was  merely  used  as  de- 
scriptive of  the  thing  bequeathed.    It  was  used  to  identify  the  particu- 


734  PROBATE   AND    ADMINISTRATION.  (Part   3 

lar  money  given,  and  it  is  entirely  settled  that  where  the  place  is  merely 
descriptive  the  removal  of  the  thing  to  another  place  is  immaterial." 

And,  finally,  we  are  of  the  opinion  that  the  terms  of  the  fifth  clause, 
creating  this  specific  legacy,  should  be  strictly  limited  to  the  interest 
which  Mrs.  Perry  had  in  the  estate  of  her  mother,  Mrs.  Dabney,  with- 
out including  the  interest  which  came  to  Mrs.  Perry  as  the  heir  of  her 
sister,  Mrs.  Rhett. 

A  decree  may  be  entered  in  accordance  with  this  opinion.^^ 


CARMICHAEL  v.  LATHROP. 

(Supreme  Court  of  Michigan,  1896.    108  Mich.  473,  66  N.  W.  350, 

32  L.  R.  A.  232.) 

Hooker,  J.  The  will  of  Henry  P.  Pulling  was  executed  in  June, 
1872.  After  giving  his  wife  the  use  and  enjoyment  of  all  of  his  prop- 
erty during  life,  in  lieu  of  dower,  it  provided  that — 

"Second.  All  the  remainder  of  the  estate  of,  in,  and  to  my  said  prop- 
erty, both  real  and  personal,  subject  to  the  said  life  estate  of  my  said 
wife,  I  give,  devise,  and  bequeath  to  my  three  daughters,  Ada  M.  La- 
throp,  of  Detroit,  Michigan,  Emily  Lloyd,  of  Albany,  New  York,  and 
Marilla  B.  Carmichael,  of  Amsterdam,  New  York,  and  to  their  heirs 
forever,  share  and  share  alike.     *     *     * 

"Third.  I  hereby  authorize  and  empower  my  hereinafter  named 
executors  to  sell  and  convey  in  fee  simple  absolute,  in  their  discretion, 
any  portion  or  all  of  my  real  estate,  with  a  view  of  otherwise  invest- 

57  In  Peirce,  Petitioner,  2.5  R.  I.  34,  54  Atl.  5SS  (1903).  a  bequest  of  stoclf  in 
the  Rhode  Island  National  Bank  was  held  to  pass  stock  in  the  United  National 
Bank,  which  latter  bank  was  a  reorganization  and  consolidation  of  the  former 
bank  and  three  others.  The  court  said:  "There  was  no  ademption  of  the  leg- 
acy of  the  stock  in  the  Rhode  Island  National  Bank,  because,  though  in  form 
a  sale,  the  stock  was  not  in  fact  sold,  but  exchanged."  But  see  In  re  Lane, 
14  Ch.  D.  856  (1880). 

"No  doubt  a  bequest  may  be  so  worded  as  to  show  that  the  subject-matter 
was  to  pass,  whatever  the  condition  with  respect  to  investment,  or  other- 
wise, in  which  it  might  be  found  at  the  testator's  death.  And  what  is  the 
■proper  effect  to  be  given  to  the  gift  of  a  sum  of  money  mentioned  or  de- 
scribed as  invested  in  a  particular  way  depends  upon  the  question  whether, 
according  to  the  true  construction  of  the  will,  it  must  be  taken  that  the 
testator  intended  the  legatee  to  have  the  money  however  it  might  be  invested, 
or,  in  other  words,  whether  the  condition  of  the  subject  in  reference  to  in- 
vestment was  the  governing  part  of  the  description  of  the  subject-matter 
of  the  bequest."  Joyce,  J.,  in  In  re  Slater,  [1906]  2  Ch.  480,  484.  See  Pren- 
dergast  v.  Walsh,  58  N.  J.  Eq.  149,  42  Atl.  1049  (1899) ;  In  re  Bradlev's  Will, 
73  Vt.  253,  50  Atl.  1072  (1901) ;  Nusly  v.  Curtis,  36  Colo.  4G4,  85-Pac.  846,  7  L. 
R.  A.  (N.  S.)  .592,  118  Am.  St.  Rep.  113  (lOOG). 

In  In  re  Gillins,  [1909]  1  Ch.  345.  the  will  gave  a  legatee  25  shares  of 
stock  in  a  certain  corporation.  At  the  date  of  the  will  shares  in  that  cor- 
poration were  £50  shares  with  £5  credited  as  paid  up.  At  the  death  of  the 
testator  the  shares  of  the  corporation  were  £10  shares  with  £1  credited  as 
paid  up.  It  was  held  that  the  legacy  was  general,  and  so  only  25  £10  shares 
passed  to  the  legatee. 


Ch.    4)  PAYMENT   OF   LEGACIES   AND    SHARES.  735 

ing  the  proceeds  thereof,  or  to  change  my  present  securities  into  real 
investments.  But  such  change  is  to  be  done  with  the  consent  of  my 
wife,  and  the  approval  of  the  probate  court  or  a  court  of  chancery. 
And  this  power  and  authority  of  so  selling  and  conveying  in  fee  simple 
absolute  my  real  estate  is  hereby  made  notwithstanding  the  bequests 
which  are  given  to  my  daughters,  which  bequests  are  hereby  made 
subservient  to  said  power.  And  I  do  hereby  direct  my  executors  to 
invest  all  my  moneys  and  property,  and  the  avails  of  all  real  estate  so 
sold,  in  first-class,  unincumbered  real  estate  mortgages,  or  in  United 
States  bonds  or  Michigan  state  bonds,  said  securities  to  be  held  and 
retained  by  them,  and  the  income  thereof  paid  quarter  yearly,  or,  at  the 
furthest,  every  half  year,  by  them,  to  my  said  wife,  until  her  decease, 
and  on  such  death  my  estate  is  to  be  closed  up  and  distributed  as  pro- 
vided for  in  the  second  clause  of  this  my  will. 

"And,  lastly,  I  do  hereby  appoint  my  brother  Abraham  C.  Pulling,  of 
New  York  City,  my  brother-in-law  William  P.  Bridgman,  of  Detroit, 
and  my  son-in-law  Joseph  Lathrop,  of  Detroit,  to  be  the  executors  of 
this  my  last  will  and  testament,  hereby  revoking  all  former  wills  by  me 
made." 

Mr.  Pulling  died  in  July,  1890,  and  the  will  was  probated  August 
19,  1890.  Joseph  Lathrop  qualified  as  executor.  The  probate  records 
show  that  at  the  time  of  the  testator's  death  he  was  seised  in  fee  of 
real  estate  to  the  value  of  $65,000,  that  there  was  due  to  him  upon 
land  contracts  $45,000,  that  he  owned  other  personal  property  to  the 
amount  of  $30,000,  and  that  there  were  no  debts  or  claims  against  the 
estate.  Previous  to  the  death  of  the  testator,  he  conveyed  to  each  of 
the  defendants  a  parcel  of  real  estate;  that  conveyed  to  Mrs.  Lloyd 
being  alleged  to  be  worth  $14,000,  and  that  received  by  Mrs.  Lathrop 
said  to  be  worth  $10,000.  There  is  evidence  tending  to  show  that  he 
intended  to  repair  the  house  upon  Mrs.  Lathrop's  property,  thereby 
making  the  gift  to  her  equal  to  that  of  Mrs.  Lloyd,  and  that  he  in- 
tended to  do  as  well  by  his  other  daughter,  the  complainant ;  but  her 
husband  became  embarrassed,  and  finally  went  to  state's  prison,  and 
she  never  received  a  home,  as  the  others  had.  Her  father,  however, 
gave  to  her  money  from  time  to  time,  for  her  support,  which  aggre- 
gated $1,100.  Soon  after  the  probate  of  the  will,  litigation  arose  be- 
tween the  widow  and  children,  which  was  finally  adjusted,  and  the 
property  was  divided,  the  parties  executing  the  necessary  deeds  and 
other  instruments  to  carry  it  into  effect.  The  accounts  of  Lathrop,  the 
executor,  were  settled,  and  he  was  discharged.  There  is  now  some 
land  held  in  common  by  the  three  sisters. 

The  complainant  files  the  bill  in  this  cause,  alleging  that  the  lands 
conveyed  by  the  testator  to  her  two  sisters  should  be  treated  as  ademp- 
tions of  their  respective  legacies,  and  that  they  should  be  required  to 
account  to  her  for  her  share  thereof.  She  alleges  that  her  father  so 
intended,  and  that  they  recognized  the  justice  thereof,  and  promised 
to  see  that  she  received  the  same,  and,  relying  upon  such  promises,  she 


736  PROBATE  AND    ADMINISTRATION.  (Part   3 

consented  to  the  settlement  of  the  estate,  expecting  that  her  sisters 
would  pay  her  an  amount  equal  to  her  share  of  said  parcels  so  received 
by  them.  It  seems  tacitly  agreed  that  this  record  involves  only  the 
question  whether  the  property  conveyed  to  Mrs.  Lloyd  and  Mrs.  La- 
throp  before  the  testator's  death  should  be  applied  upon  their  respective 
interests  under  the  will,  or,  in  other  words,  as  the  counsel  for  the  com- 
plainant state  it,  whether  it  can  be  treated  as  an  ademption  or  a  satis- 
faction pro  tanto  of  their  bequests.  We  are  perhaps  at  liberty  to  as- 
sume from  the  pleadings  and  admitted  facts  that  the  defendants  re- 
ceived sufficient  personal  property  under  the  will  to  more  than  cover 
the  claim  of  the  complainant ;  in  other  words,  that  they  have  received 
bequests  to  such  amount  in  addition  to  any  lands  that  they  may  have 
received.  As  to  such  personal  property,  the  will  made  the  sisters  lega- 
tees, although  they  may  have  been  also  devisees  as  to  the  real  estate, 
if  the  contention  of  the  defendants'  counsel  is  correct.  In  other  words, 
they  are  none  the  less  legatees,  taking  bequests  of  personal  property, 
because  one  and  the  same  provision  of  the  will  gave  them  both  per- 
sonal and  real  property.  Hence  we  need  spend  no  time  upon  the  ques- 
tion whether  the  terms  of  the  will  made  them  devisees,  as  there  are 
legacies  sufficient  to  support  the  ademption  contended  for.  We  can 
therefore  eliminate  some  of  the  questions  which  arise  where  an  at- 
tempt is  made  to  apply  the  doctrine  of  satisfaction  to  a  devise  of  real 
property  by  reason  of  the  conveyance  to  the  devisee  of  other  property. 
The  case  is  one  where  it  is  claimed  that  a  gift  of  personal  property  by 
will  may  be  satisfied  by  a  conveyance  of  land,  when  such  is  the  clear 
intention  of  the  testator. 

If  a  person  should  bequeath  to  another  a  sum  of  money,  and,  pre- 
vious to  his  (the  testator's)  death,  should  pay  to  such  person  the  same 
amount,  upon  the  express  understanding  that  it  was  to  discharge  the 
bequest,  the  legacy  would  be  thereby  adeemed.  But,  in  the  absence 
of  an  apparent  or  expressed  intention,  that  would  not  ordinarily  be 
the  effect  of  the  payment  of  a  sum  of  money  to  a  legatee  under  an  ex- 
isting will.  Generally,  such  payment  would  not  affect  the  legacy.  To 
this  rule  there  is  an  exception,  where  the  testator  is  a  parent  of  or 
stands  to  the  legatee  in  loco  parentis.  In  such  case  the  payment  would 
be  presumed  to  be  an  ademption  of  the  legacy.  At  first  blush  this 
impresses  one  as  an  unreasonable  rule,  as  it  puts  the  stranger  legatee 
upon  a  better  footing  than  the  testator's  own  son,  and  judges  and  law- 
writers  have  severely  condemned  the  rule.  See  2  Story,  Eq.  Jur.  §§ 
1110-1113.  It  has  been  said  that  "this  rule  has  excited  the  regret 
and  censure  of  more  than  one  eminent  modern  judge,  though  it  has  met 
with  approbation  from  other  high  authorities."  2  Williams,  Ex'rs 
(7th  Am.  Ed.)  *1194.  Story's  condemnation  of  it  is  strong,  but  he 
adds :  "We  must  be  content  to  declare,  'Ita  lex  scripta  est.'  It  is  es- 
tablished, although  it  may  not  be  entirely  approved."  And  Worden. 
J.,  in  Weston  v.  Johnson,  48  Ind.  5,  says,  "Whatever  may  be  thought 
of  the  doctrine,  it  is  thoroughly  established  in  English  and  American 


Ch.  4)  PAYMENT  OF  LEGACIES  AND  SHARES.  731 

jurisprudence."    Shudal  v.  Jekyll,  2  Atk.  518 ;  Ex  parte  Pye,  18  Ves. 
140,  2  White  &  T.  Lead.  Cas.  Eq.  (4th  Ed.)  741;  Van  Houten  v.  Post, 

33  N.  J.  Eq.  344. 

With  a  refinement  of  logic,  characteristic,  the  early  English  judges 
held  that  the  intention  to  adeem  a  legacy  is  to  be  presumed  from  the 
advancement  of  a  part  of  the  legacy,  on  the  theory  that  it  was  the  tes- 
tator's right  to  do  so,  and  that  he  must  be  presumed  to  be  the  best 
judge  of  the  propriety  of  a  revocation  (Ex  parte  Pye,  18  Ves.  140)  ; 
but  the  rigor  of  this  rule  has  been  relaxed,  and  cannot  now  be  said  to 
be  the  law.  Pym  v.  Lockyer,  5  Mylne  &  C.  29,  55 ;  Montague  v.  Mon- 
tague, 15  Beav.  565;  2  Williams,  Ex'rs  (7th  Am.  Ed.)  *1195;  Hop- 
wood  V.  Hopwood,  7  H.  L.  Cas.  728;  Wallace  v.  Du  Bois,  65  Md. 
153,  159.  And  see  cases  cited  in  1  Pom.  Eq.  Jur.  §  555,  note  3.*  There 
are  cogent  reasons  in  support  of  the  rule  stated — i.  e.,  that  payment  to 
a  son  adeems  the  legacy— which  is  based  on  the  theory  that  such  leg- 
acy is  to  be  considered  as  a  portion,  and  that  the  father's  natural  in- 
cHnation  to  treat  his  children  alike  renders  it  more  probable  that  his 
payment  was  in  the  nature  of  an  advancement  than  a  discrimination 
in  favor  of  one,  oftentimes  the  least  worthy.  Double  portions  were 
considered  inequitable,  and  upon  this  the  doctrine  rests.  Suisse  v. 
Lowther,  2  Hare,  424,  433. 

While  the  authorities  are  a  unit  that  a  legacy  by  one  in  loco  parentis 
will  be  adeemed  by  payment,  in  the  absence  of  an  apparent  or  ex- 
pressed intent  to  the  contrary,  the  doctrine  was  early  restricted. 
Among  other  limitations  was  the  rule  that  the  presumption  could  not 
be  applied  to  a  residuary  bequest,  because  the  court  would  not  presume 
that  a  legacy  of  a  residue,  or  other  indefinite  amount,  had  been  satis- 
fied by  an  advancement,  as  the  testator  might  be  ignorant  whether 
the  benefit  that  he  was  conferring  equaled  that  which  he  had  already 
willed.  Freemantle  v.  Bankes,  5  Ves.  85 ;  Clendening  v.  Clymer,  17 
Ind.  155;  2  Story,  Eq.  Jur.  §  1115.  This  exception  fell  with  the  dis- 
carding of  the  rule  that  satisfaction  must  be  in  full.  Pym  v.  Lockyer, 
5  Mylne  &  C.  29 ;  Montefiore  v.  Guedalla,  1  De  Gex,  F.  &  J.  93. 
Again,  it  was  held  that  it  could  not  be  applied  unless  the  advancement 
was  ejusdem  generis  with  the  legacy.    See  2  Story,  Eq.  Jur.  §  1109. 

*  "It  seems  to  have  been  originally  held  that  complete  ademption  resulted, 
even  when  the  subsequent  payment  was  less  than  the  amount  of  the  legacy — 
this  on  the  theory  that  the  legacy  is  the  child's  portion,  and  that  a  subsequent 
advancement  is  in  lieu  of  such  portion.  See  Hartop  v.  Whitmore.  1  P.  Wms. 
681  (1720);  Clarke  v.  Burgoine,  1  Dick.  353  (1762);  Ex  parte  Pye,  18  Ves. 
153  (1811).  But  this  view  is  no  longer  recognized.  See  2  Story,  Eq.  Jur.  | 
1111;  Paine  v.  Parsons,  14  Pick.  (Mass.)  318  (1833). 

"The  question  as  to  whether  a  testator  is  to  be  considered  as  standing  in 
loco  parentis  depends  upon  the  circumstances  of  each  particular  case.  The 
test  is  whether  the  testator  means  to  put  himself  in  the  situation  of  the 
lawful  father  of  the  child,  with  reference  to  the  father's  office  and  duty  of 
making  provision  for  the  child.  2  Wms.  EJx'rs,  1338.  Great-uncles,  uncles, 
grandfathers,  and  grandmothers  are  not  to  be  considered  In  loco  parentum 
unless  such  is  their  intention.     Id.  1339."    Gardner  on  Wills,  569,  note. 

Cost.  Wills — 47 


738  PROBATE  AND    ADMINISTRATION.  (Part   3 

Counsel  for  the  defendants  contends  that  "the  conveyance  of  real 
estate  after  the  making  of  a  will  is  held  not  a  satisfaction  of  any  leg- 
acy, in  whole  or  in  part,  even  though  that  was  the  clear  intent  of  the 
testator,"  and  he  cites  several  authorities  to  sustain  the  proposition. 
In  Arthur  v.  Arthur,  10  Barb.  (N.  Y.)  9,  it  was  held  that  "a  convey- 
ance made  subsequent  to  a  devise  of  land  is  not  a  revocation  or  satis- 
faction of  a  devise  of  other  lands  to  the  grantee.  But,  if  the  convey- 
ance be  of  a  portion  of  the  same  land,  that  is  a  revocation  pro  tanto." 
This  was  a  case  where  the  court  found  that  the  grantor  intended  and 
the  grantee  expected  the  land  conveyed  would  be  in  lieu  of  the  gran- 
tee's share  under  the  will.  It  was  said  that  to  hold  that  the  conveyance 
was  a  satisfaction  was  to  hold  that  the  will  might  be  revoked  by  impli- 
cation, which  could  not  be  tolerated  under  the  statute  of  frauds.  This 
case  contains  an  elaborate  discussion  of  the  subject,  and  cites  many  of 
the  earlier  authorities  bearing  upon  it. 

The  Court  of  Appeals  considered  the  subject  in  Burnham  v.  Com- 
fort, 108  N.  Y.  535,  15  N.  E.  710,  2  Am.  St.  Rep.  462.  In  this  case 
it  was  claimed  that  a  devise  of  real  property  was  satisfied  by  the  pay- 
ment of  money,  on  the  express  understanding,  evidenced  by  the  receipt 
of  the  devisee,  that  it  was  received  as  a  part  of  her  father's  estate. 
The  court  said  that,  to  sustain  such  claim,  they  must  hold  that  it  op- 
erated as  a  revocation  of  the  will,  which  would  contravene  "the  spirit, 
if  not  the  letter,"  of  the  statute  of  frauds,  and  that  the  proposition 
"lacked  support  in  principle  as  well  as  authority."  The  opinion  then 
asserts  that  "the  rule  of  ademption  is  pr.edicable  of  legacies  of  personal 
estate,  and  is  not  applicable  to  devises  of  realty."  After  discussing 
the  question  of  intention,  and  intimating  that,  while  a  presumption  of 
intention  that  the  gift  should  be  in  satisfaction  would  exist  if  the  case 
were  one  involving  a  legacy,  it  would  not  in  case  of  a  devise,  it  pro- 
ceeds to  show  that  the  statute  of  frauds,  which  extends  to  wills,  was 
an  unsurmountable  barrier  to  the  application  of  the  rule  contended  for, 
as  to  devises.    Two  members  of  the  court  dissented. 

The  Supreme  Court  of  South  Carolina,  in  the  case  of  Allen  v.  Allen, 
13  S.  C.  512,  36  Am.  Rep.  716,  had  occasion  to  consider  a  case  where 
the  legatees  were  also  devisees,  as  in  the  present  case.  It  was  held 
that  payments  of  money  were  to  be  considered  as  made  in  satisfaction 
of  the  legacies,  but  not  the  devises.    The  court  said: 

"It  would  seem  that,  upon  the  same  principles,  devises  of  real  estate 
ought  likewise  to  be  adeemed  (if  such  a  term  can,  with  any  propriety, 
be  applied  to  devises)  by  subsequent  payments  to  the  devisees  with  the 
intention  of  producing  that  result ;  but  it  is  conceded  that  the  doctrine 
of  ademption  has  never  been  applied  to  devises  of  real  estate,  and,  in 
the  absence  of  any  authority,  we  do  not  feel  justified  in  disregarding 
the  well-established  line  which  has  for  ages  been  drawn  between  real 
and  personal  estate,  even  though  we  may  be  thereby  compelled  to 
thwart  the  obvious  intention  of  the  testator,  and  disturb  that  distribu- 
tion of  his  property  which  he  thought  was  proper  and  just  to  hifs  de- 


Ch.    4)  PAYMENT  OF  LEGACIES  AND    SHARES.  739 

scendants.  For,  while  the  intention  of  the  testator  is  the  cardinal  rule 
of  construction  of  a  will,  yet  such  intention  cannot  be  given  effect 
where  it  is  in  conflict  with  the  rules  of  law.  A  devise  of  real  estate 
cannot,  like  a  pecuniary  legacy,  be  affected  by  any  subsequent  trans- 
actions between  the  testator  and  the  devisee,  but  must  stand  until  it  is 
revoked  or  altered  in  the  manner  prescribed  by  law." 

Attention  is  also  called  to  the  case  of  Swails  v.  Swails,  98  Ind.  511. 
In  this  case  land  was  devised  as  follows :  88  acres  to  J. ;  36  acres  to 
N.  Subsequently  the  testator  conveyed  portions  of  the  same  land  as 
follows,  viz. :  60  acres  to  J.,  the  son ;  and  40  acres  to  N.,  a  grandson. 
It  was  held  that  the  deeds  did  not  revoke  the  devise  of  the  24  acres  to 
N.,  and  that  the  doctrine  of  ademption  does  not  apply  to  specific  de- 
vises of  real  estate,  nor  where  the  devisor  does  not  stand  in  loco  pa- 
rentis. The  case  followed  Weston  v.  Johnson,  48  Ind.  1,  where  it  was 
held  that  the  doctrine  of  ademption  of  legacies  by  advancement  to  the 
legatee  by  the  testator  in  his  lifetime  has  no  application  to  devises  of 
real  estate.  Again,  in  Campbell  v.  Martin,  87  Ind.  577,  it  is  said,  "But 
we  know  of  no  reason  whatever  for  the  extension  of  this  doctrine, 
and  making  it  applicable  to  devises  of  real  estate." 

In  Marshall  v.  Rench,  3  Del.  Ch.  239,  the  court  admits  that  in  some 
cases  a  conveyance  to  a  devisee  after  the  making  of  the  will  would 
operate  in  like  manner  as  the  ademption  of  a  legacy — e.  g.,  where  the 
conveyance  to  the  devisee  is  of  the  same  land — because  "by  such  a 
conveyance  the  testator  executes  his  devise,  precisely  as  the  settlement 
of  a  portion  on  a  legatee  is  an  ademption  of  the  legacy."  The  court 
adds  that  "the  conveyance  to  a  devisee  of  lands  other  than  those  de- 
vised, or  of  an  interest  in  lands  different  from  that  devised,  has  never 
been  held  an  implied  revocation  of  the  devise."  The  authorities  cited 
in  support  of  this  are  all  ancient,  except  Arthur  v.  Arthur,  hereinbe- 
fore discussed. 

We  mention  at  this  point  the  fact  that  all  of  these  were  cases  where 
the  attack  was  made  upon  a  devise,  merely,  except  the  South  Carolina 
case,  and  in  that  case  the  claim  of  ademption  was  sustained  as  to  the 
legacies. 

2  Woerner,  Adm'n,  p.  978,  is  cited  in  support  of  defendants'  con- 
tention.   This  author  dismisses  the  subject  with  the  statement  that — 

"Specific  legacies  are  said  not  to  be  affected  by  the  subsequent  ad- 
vancement of  a  portion,  because  the  gift  of  specific  articles  of  personal 
property  by  a  father  to  his  child  is  not  presumed  to  be  intended  as  a 
portion.  And,  for  the  same  reason,  real  estate  devised  is  held  not  to 
come  within  the  rule;  but  this  exception  is  repudiated  in  Virginia,  and 
unfavorably  commented  on  elsewhere."  See  Hansbrough  v.  Hooe,  12 
Leigh  (Va.)  316,  37  Am.  Dec.  659. 

The  authorities  cited  have  been  commented  on  at  length  for  the 
purpose  of  showing  that  they  differ  from  the  case  before  us,  inasmuch 
as  they  were  cases  where  it  was  sought  to  treat  conveyances  as  satis- 
factions of  devises.     This  is  not  a  case  where  an  attempt  is  made  to 


740  PROBATE   AND    ADMINISTRATION.  (Part   3 

deprive  a  devisee  of  title  to  land  willed  to  him,  but  it  is  claimed  that 
the  presumption  that  a  bequest  to  a  son  is  satisfied  pro  tanto  by  a  gift 
is  not  to  be  applied  where  the  gift  is  of  land  instead  of  money,  or 
other  personal  property  ejusdem  generis. 

In  Richards  v.  Humphreys,  15  Pick.  (Mass.)  140,  will  be  found  the 
following  dictum  of  Shaw,  C.  J. : 

"We  have  seen  that  ademption  depends  solely  upon  the  will  of  the 
testator,  and  not  at  all  upon  the  ability  of  the  party  receiving  to  give 
a  valid  discharge.  Had  the  money  been  paid  to  trustees  or  others 
for  her  benefit,  without  any  act  or  consent  of  hers,  if  given  expressly 
in  lieu  or  in  satisfaction  of  such  legacy  to  her,  it  would  have  operated 
as  an  ademption.  Had  he  purchased  a  house  or  other  property  in 
her  name,  and  for  her  benefit,  with  the  like  intent  and  purpose  ex- 
pressed, it  would  have  had  the  same  effect." 

It  is  apparent  that  the  law  looks  upon  a  legacy  to  a  son  as  a  setting 
off  of  his  portion.  Also,  it  is  plain  that  a  subsequent  gift,  unless  it  be 
of  real  estate,  is  presumed  to  be  in  satisfaction  pro  tanto  of  the  legacy. 
It  is  also  settled  that  whether  the  gift  is  to  be  considered  an  ademption 
of  a  legacy  must  depend  upon  the  intent  of  the  testator  alone.  A  gift 
of  personal  property  to  a  son  may  be  shown  not  to  have  been  so  in- 
tended, but  the  burden  is  upon  the  legatee.  Ford  v.  Tynte,  2  Hem.  & 
M.  324.  A  gift  to  a  stranger  may  be  shown  to  have  been  intended  as 
an  ademption,  but  here  the  presumption  is  the  other  way,  the  burden 
being  upon  the  administrator  to  show  such  intent. 

There  can  be  no  doubt  that  a  testator's  conveyance  of  real  property 
may  constitute  an  ademption,  if  he  so  intends  it,  e.  g.,  where  he  ex- 
presses the  intent  in  the  conveyance,  and  possibly  in  other  ways.  If 
so,  the  only  significance  of  the  doctrine  ejusdem  generis  is  its  effect 
upon  the  presumption.  The  doctrine  that  the  property  conveyed  must 
be  ejusdem  generis  appears  to  be  the  only  ground  upon  which  it  can  be 
said  that  the  conveyance  in  this  case  should  not  be  treated  as  satis- 
faction pro  tanto.  It  has  been  said  in  early  cases  that  "when  the  gift 
by  will  and  the  portion  are  not  ejusdem  generis,  the  presumption  will 
be  repelled.  Thus,  land  will  not  be  presumed  to  be  intended  as  a  satis- 
faction for  money,  nor  money  for  land."  Bellasis  v.  Uthwatt,  1  Atk. 
428;  Goodfellow  v.  Burchett,  2  Vern.  298;  Ray  v.  Stanhope,  2  Ch. 
R.  159 ;  Saville  v.  Saville,  2  Atk.  458 ;  Grave  v.  Earl  of  Salisbury,  1 
Brown,  Ch.  425.    But  see  Bengough  v.  Walker,  15  Ves.  507. 

The  courts  have  not  accepted  without  protest  the  proposition  that 
the  application  of  the  presumption  arising  from  the  relation  of  parent 
and  child  should  depend  upon  the  similarity  of  the  property  willed 
and  donated,  and  it  has  been  asked  "why,  if  a  gift  of  a  thousand  dol- 
lars will  satisfy  a  legacy  of  that  amount,  it  should  not  equally  be  sat- 
isfied by  a  donation  of  lands  of  equal  value."  And  see  Pym  v.  Lock- 
yer,  5  Mylne  &  C.  44.  But  all  agree  that  ademption  is  a  matter  of 
intent.  In  Jones  v.  Mason,  5  Rand.  (Va.)  577,  16  Am.  Dec.  761,  the 
court  said,  "This  whole  class  of  cases  depends  upon  the  intention;" 


Ch.    4)  PAYMENT  OF  LEGACIES  AND    SHARES.  741 

citing  Hoskins  v.  Hoskins,  Free.  Ch.  263,  and  Chapman  v.  Salt,  2 
Vern.  646.  Again,  it  was  said :  "It  is  laid  down  generally  that  a  re- 
siduary legacy  will  not  adeem  a  portion  due  under  a  settlement,  because 
it  is  entirely  uncertain  what  that  legacy  may  be.  But  this  rule,  like 
the  rest,  yields  to  intention" — citing  Rickman  v.  Morgan,  1  Brown, 
Ch.  63,  2  Brown,  Ch.  394."  In  Bengough  v.  Walker,  15  Ves.  507,  it 
was  held  that  a  bequest  of  a  share  in  powder  works,  charged  with  an 
annuity,  was  a  satisfaction  of  a  portion  of  i2,000,  when  it  was  so  in- 
tended.   See,  also.  Gill's  Estate,  1  Pars.  Eq.  Cas.  (Pac.)  139. 

It  is  forcefully  argued  that  these  cases  make  obsolete  the  doctrine  of 
ejusdem  generis.  Whether  they  do  or  not,  they  certainly  show  that 
it  must  yield  to  the  testator's  intent.  We  cannot,  therefore,  accede  to 
the  proposition  of  counsel  for  the  defendants  "that  conveyance  of  real 
estate  will  not  be  held  a  satisfaction  of  any  legacy,  in  whole  or  in  part, 
even  though  the  intent  of  the  testator  is  clear." 

We  think  the  testimony  shows  the  testator's  intent.  There  may  be 
testimony  in  the  record  that  was  incompetent  to  prove  it,  but  there  is 
sufficient  that  was  com.petent.  The  widow  was  conversant  with  the 
entire  transaction,  and  the  defendants'  statements  are  admissions  of 
their  knowledge  of  such  intentions. 

It  is  contended  that  "the  allowance  of  a  conveyance  of  property  as 
a  satisfaction. of  a  devise  or  legacy  would  be  equivalent  to  a  revocation 
of  the  will  in  part,  and  it  would  have  to  be  proven  in  the  manner  pro- 
vided by  our  statute  for  the  revocation  of  wills,  that  is,  by  the  destruc- 
tion of  the  will,  or  the  making  of  a  new  will."  2  How.  Ann.  St.  § 
5793 ;  Lansing  v.  Haynes,  95  Mich.  16,  54  N.  W.  699,  35  Am.  St. 
Rep.  545.  We  think  it  should  not  be  called  a  revocation  of  the  will. 
The  defendants'  bequests  are  permitted  to  stand  unquestioned,  and 
matter  in  discharge  of  the  obligation  (i.  e.,  payment)  is  shown.  The 
will  is  not  overturned  or  revoked.     It  is  satisfied. 

We  think  the  prayer  of  the  bill  should  be  granted,  and  the  record 
should  be  remanded  to  the  circuit  court  for  the  county  of  Wayne,  in 
chancery,  for  further  proceedings.    Decreed  accordingly." 

B8  "It  Is  now  held  that  whether  a  residue  shall  be  held  to  be  adeemed  or 
not  Is  a  question  of  intention,  as  In  other  cases  of  ademption.  Montefiore 
V.  Guedalla,  6  Jur.  (N.  S.)  329;  Williams  on  Executors,  1334,  1335."  The 
Ordinary,  in  Van  Houten  v.  Post,  32  N.  J.  Eq.  709,  712  (1880).  But  see 
Davis  V.  Whittaker.  38  Ark.  435  (1882). 

5  9  Compare  In  re  Youngerman's  Estate,  136  Iowa,  488,  114  N.  W.  7  (1907). 
An  advancement  to  a  husband  by  his  father-in-law  may  be  held  to  be  an 
advancement  to  the  wife.  See  McCabe  v.  Brosenne,  107  Md.  490,  69  Atl. 
259  (1908).  And  even,  it  seems,  though  the  wife  is  ignorant  of  the  deed  of 
gift.     Ireland  v.  Dyer  (Ga.)  67  S.  E.  195  (1910). 

On  whether  a  subsequent  benefit  to  a  legatee  to  whom  the  testator  does  not 
stand  in  loco  parentis  Is  an  ademption  or  satisfaction  of  the  legacy,  see  15 
Am.  &  Bng.  Ann.  Cas.  248,  note. 


742  PROBATE   AND    ADMINISTRATION.  (Part   3 

IZARD  V.  HURST. 
(High  Court  of  Chancery,  1697.    2  Freem.  C.  C.  224.) 
See  ante,  p.  360,  for  a  report  of  the  case.^** 


JAQUES  V.  SWASEY. 

(Supreme  Judicial  Court  of  Massachusetts,  Essex,  1891.    153  Mass.  596,  27  N. 

B.  771,  13  L.  R.  A.  566.) 

Appeal,  by  residuary  legatees  under  the  will  of  Anna  Jaques,  from 
a  decree  of  the  probate  court  allowing  to  William  H.  Swasey,  the  ex- 
ecutor, the  sum  of  $10,000,  paid  by  him  to  Harriet  M.  Downs  as  a  leg- 
acy under  the  will. 

W.  Allen,  J.  The  appellants  contend  that  the  sum  of  $3,000, 
paid  by  the  testatrix  in  her  lifetime  to  Mrs.  Downs,  should  be  deducted 
from  the  legacy  of  $10,000  to  her.     The  payment  was  made  several 

CO  "Equity  leans  against  doulile  portions,  and  the  general  rule  is  that 
wherever  a  legacy  given  by  a  parent,  or  a  person  standing  in  loco  parentis, 
is  as  great  as  or  greater  than  a  portion  previously  secured  to  the  legatee 
upon  marriage  or  otherwise,  a  presumption  arises  that  the  legacy  was  in- 
tended as  a  satisfaction  of  the  portion.  If  the  legacy  is  less  than  the  portion, 
a  presumption  arises  that  it  was  intended  as  a  satisfaction  pro  tauto.  And 
a  share  of  residue  is  on  the  same  footing  as  a  pecuniary  legacy  as  regards 
the  rule  against  double  portions.  Thynne  v.  Earl  of  Glengall,  2  H.  L.  C. 
131."     Swinfen  Eady,  J.,  in  In  re  Blundell,  [1906]  2  Ch.  222,  226,  227. 

"It  is  not  every  gift,  every  provision  made  by  a  parent  for  the  benefit 
of  his  child,  that  is  a  portion.  I  thinli  that  a  portion  implies  something 
that,  having  regard  to  the  circumstances  of  the  parties,  may  be  called  a  sub- 
stantial provision.  If  I  had  left  my  son  a  £10,000  legacy,  he  would  not  be 
called  to  account  for  every  £5  note  that  I  gave  him  on  his  birthday.  On  the 
other  hand,  tlie  term  'portion'  does  not  imply  that  there  is  a  solemn  marriage 
settlement,  or  the  purchase  of  a  business  or  an  estate.  Any  considerable 
sum  of  money  might  be  regarded  as  a  portion.  See  Leighton  v.  Leighton, 
L.  R.  18  Eq.  458."  Maitland's  Equity  and  the  Forms  of  Action  at  Common 
Law,  188. 

"In  In  re  Furuess,  [1901]  2  Ch.  346,  a  testator  by  his  will  made  in  1885 
gives  £20.000  to  his  daughter,  directing  that  £15,000  [thereof]  shall  be  settled 
on  certain  trusts  for  her  and  her  children.  On  her  marriage  in  1893  he  set- 
tles £7,300  consols  upon  her  and  her  children,  but  the  trusts  are  not  the 
same.  It  is  undisputable  that  as  regards  her  interest  there  is  ademption 
pro  tanto.  The  question  is  whether  it  is  to  be  treated  as  in  ademption  of 
the  settled  £15,000  or  of  the  unsettled  £5,000.  Joyce,  J.,  holds  that  it  is  in 
partial  ademption  of  the  former.  The  case  shows  the  strength  of  this  pre- 
sumption [that  a  benefit  given  by  the  will  is  meant  to  be  a  satisfaction  of 
a  portion  debt]."    Id..  190. 

In  In  re  Heather,  [1906]  2  Ch.  230,  where  the  testator's  will  gave  a  £3,000 
legacy  to  hi&  adopted  daughter  and  the  residue  of  his  estate  to  that  adopted 
daughter  and  to  a  person  to  whom  he  did  not  stand  in  loco  parentis,  and 
where  the  testator,  after  the  date  of  his  will  and  codicils  gave  the  daughter 
£1,000  to  invest  for  her  own  benefit,  it  was  held  that  neither  the  £3,000 
legacy  nor  the  residuary  gift  to  the  daughter  was  pro  tanto  adeemed,  be- 
cause (per  Swinfen  Eady,  J.)  "a  rule  designed  to  produce  equality  among 
children  cannot  be  extended  so  as  to  reduce  their  shares  for  the  benefit  of  a 
stranger."' 


Ch.    4)  PAYMENT  OF  LEGACIES  AND    SHARES.  743 

years  before  the  will  was  executed,  and  cannot  operate  as  an  ademp- 
tion or  payment  or  advancement  pro  tanto  of  the  legacy.  To  give 
such  an  effect  to  it  would  be  to  vary  the  terms  of  the  will,  and  to  show 
by  parol  that  the  testatrix  intended  a  legacy  of  $7,000,  and  not  $10,- 
000.  Payment  of  a  legacy  provided  for  in  a  will  made  by  the  testa- 
tor before  the  will  takes  effect  by  his  death  is  regarded  as  consistent 
with  and  carrying  out  the  intention  expressed  in  the  will ;  but  to  ap- 
ply a  gift  made  before  the  execution  of  the  will  in  full  or  part  satis- 
faction of  a  legacy  given  by  the  will  necessarily  varies  the  terms  of 
the  legacy,  and  allows  the  intention  expressed  in  the  will  to  be  con- 
trolled by  a  different  intention  proved  by  parol.  If  a  gift  is  made  by 
a  parent  to  a  child,  it  may  be  presumed  to  be  an  advancement  of  a 
portion  of  the  parent's  estate  which  he  has  given  to  the  child  by  will, 
or  which  the  law  may  give  if  the  parent  dies  intestate;  but  if,  after 
making  such  gift,  the  parent  by  will  fixes  the  portion  of  the  child, 
the  former  gift  cannot  be  taken  as  a  part  of  the  portion  unless  made 
so  by  the  will.  It  cannot  by  possibility  be  an  ademption  of  the  legacy. 
If  it  can  operate  as  a  satisfaction  of  the  legacy,  it  must  be  upon  other 
grotmds  than  the  right  of  the  testator  to  adeem  a  legacy.  Paine  v. 
Parsons,  14  Pick.  318 ;  Richards  v.  Humphreys,  15  Pick.  133 ;  Jones 
V.  Richardson,  5  Mete.  (Mass.)  247,  253;  Hartwell  v.  Rice,  1  Gray, 
587,  594.  See  authorities  collected  in  note  to  Chancey's  Case,  2  White 
&  T.  Lead.  Cas.  (4th  Am.  Ed.)  p.  783  et  seq.  It  has  been  held  that  a 
payment  by  a  father  to  a  child  will  operate  as  a  satisfaction  pro  tanto 
of  a  legacy  to  the  child  in  a  subsequent  will,  when  it  is  received  by  the 
child  under  a  promise  by  him  that  it  shall  be  so  applied.  In  that  case 
the  money  is  received  by  the  child  as  a  part  of  the  portion  to  be  desig- 
nated in  the  will,  and  it  would  be  fraudulent  in  him  not  to  allow  it  in 
satisfaction  pro  tanto  of  the  legacy  given  in  pursuance  of  the  under- 
standing. Upton  v.  Prince,  Cas.  t.  Talb.  71 ;  Taylor  v.  Cartwright, 
L.  R.  14  Eq.  167,  176;Yundt's  Appeal,  13  Pa.  575,  53  Am.  Dec.  496; 
Musselman's  Estate,  5  Watts  (Pa.)  9;  Kreider  v.  Boyer,  10  Watts, 
54;   Rogers  v.  French,  19  Ga.  322. 

The  real  question  in  the  case  at  bar  is  whether  it  was  understood 
between  Miss  Jacques,  the  testator,  and  Mrs.  Downs,  when  the  $3,000 
was  given  by  the  former  to  the  latter,  that  that  sum  was  paid  and  re- 
ceived as  part  of  a  portion  to  be  given  to  Mrs.  Downs  by  will,  and 
was  pro  tanto  in  satisfaction  of  the  subsequent  legacy.  In  the  year 
1874,  Mrs.  Downs,  then  Miss  Smith,  went  to  live  with  Miss  Jacques, 
who  was  a  single  woman,  well  advanced  in  life,  as  her  daughter,  with 
the  understanding  that  if  she  continued  to  live  with  Miss  Jacques 
during  her  life  Miss  Smith  would  be  treated  as  a  daughter,  and  would 
be  provided  for  in  the  will  of  Miss  Jacques  by  a  legacy  of  $10,000. 
As  regards  advancements  of  a  portion.  Miss  Jacques  stood  practically 
in  loco  parentis  to  Miss  Smith,  and  it  may  be  assumed  that  the  rules 
that  apply  to  advancements  and  legacies  between  parent  and  child 
applied  to  them.     Miss  Jacques  made  a  will  about  the  time  Miss  Smith 


744  PROBATE  AND    ADMINISTRATION.  (Part   3 

went  to  live  with  her,  in  which  she  gave  "to  Harriet  M.  Smith,  my 
adopted  daughter,  provided  she  Hves  with  me  until  my  decease,  ten 
thousand  dollars."  In  January,  1876,  Miss  Jacques  made  another  will, 
in  which  she  gave  to  Miss  Smith  "the  sum  of  ten  thousand  dollars  in 
cash,  provided  she  lives  with  me  until  my  decease." 

In  the  same  year  Miss  Smith  was  married,  and  after  her  marriage 
the  $3,000  was  paid  to  her,  and  she  gave  the  following  writing:  "New- 
bury, Nov.  29,  1876.  Whereas,  Miss  Anna  Jacques  has  intimated  to 
me  that  in  her  will  of  January  31st,  A.  D.  1876,  she  has  devised  a  cer- 
tain sum  of  money  on  certain  conditions,  now,  being  desirous  of 
purchasing  a  house  and  land  adjoining  the  same,  she  (Miss  Jacques) 
has  kindly  advanced  to  me  the  sum  of  three  thousand  dollars  by  the 
hands  of  Edward  P.  Shaw,  this  day.  I  hereby  acknowledge  to  have 
received  the  said  sum  of  three  thousand  dollars  in  advance  of  and  on 
account  of  said  legacy,  and  in  settlement  of  said  estate  if  the  condi- 
tions above  mentioned  are  fulfilled  it  shall  be  deducted  from  the  said 
legacy  aforesaid,  and  I  bind  myself  by  this  receipt  to  perform  above 
agreement,  to  allow  the  deduction  to  the  executors  of  the  said  estate." 
This  was  signed  by  Mrs.  Downs,  and  attested  by  a  witness.  Mrs. 
Downs  continued  to  live  with  Miss  Jacques  until  her  death,  in  January, 
1885.  In  August,  1882,  Miss  Jacques  made  a  new  will,  which  express- 
ly revoked  former  wills,  and  contained  this  clause:  "Item  7.  I  give 
and  bequeath  to  Harriet  M.  Downs,  wife  of  Willard  O.  Downs,  the 
sum  of  ten  thousand  dollars  if  she  shall  survive  me;  but  if  she  shall 
not  survive  me,  in  such  case  I  give  and  bequeath  the  same  (ten  thou- 
sand dollars)  to  her  children  who  may  be  living  at  the  time  of  my 
decease." 

This  will  was  admitted  to  probate.  Unquestionably  the  payment  of 
the  $3,000  would  have  been  an  advancement  of  so  much  of  the  legacy 
given  by  the  will  of  1876,  and  an  ademption  pro  tanto  of  it,  had  the 
instrument  which  contained  it  become  the  will  of  Miss  Jacques.  But 
the  will  was  revoked,  and  a  subsequent  will  executed;  and  the  inten- 
tion of  Miss  Jacques  that  the  payment  should  be  in  satisfaction  of  a 
legacy  given  by  the  subsequent  will  cannot  of  itself  be  given  in  evidence 
to  control  the  plain  terms  of  the  actual  will.  Unless  that  intention  was 
understood  and  assented  to  by  Mrs.  Downs  when  the  payment  was 
made,  it  cannot  be  taken  as  satisfaction  pro  tanto  of  the  subsequent 
legacy.  The  paper  signed  by  Mrs.  Downs  does  not  show  any  contract 
or  understanding  that  the  payment  should  be  in  satisfaction  of  a  sub- 
sequent legacy.  It  refers  and  is  limited  to  the  legacy  in  the  will  of 
1876.  The  fact  that  it  was  understood  that  Mrs.  Downs  should  have 
a  portion  of  the  estate  of  Miss  Jacques  can  have  no  greater  effect  than 
to  place  her  in  the  position  of  a  child  who  expected  a  portion.  The 
fact  that  $10,000  had  been  mentioned  when  the  relation  of  the  parties 
commenced  as  the  amount  of  the  portion,  and  was  the  amount  of  the 
legacy  in  the  existing  will,  does  not  show  that  Mrs.  Downs  in  accept- 
ing an  advancement  of  a  part  of  that  legacy  agreed  to  receive  it  in  satis- 


Ch.    4)  PAYMENT  OP  LEGACIES  AND    SHARES.  745 

faction  of  an  equal  amount  of  any  future  legacy  that  might  be  given 
to  her,  there  was  nothing  in  the  transaction  which  could  prevent  Miss 
Jacques  from  revoking  the  legacy  and  giving  a  new  legacy  for  any 
amount  she  might  choose,  nor  that  could  prevent  Mrs.  Downs  from 
receiving  the  full  amount  of  a  subsequent  legacy.  The  writing  is 
limited  to  the  legacy  mentioned  in  it,  and  cannot  of  itself  affect  any 
subsequent  gift. 

The  only  other  evidence  upon  which  the  appellants  rely  for  proof 
that  Mrs.  Downs  agreed  to  receive  the  $3,000  in  satisfaction  of  a  fu- 
ture legacy  i^  conversations  between  Miss  Jacques  and  Mrs.  Downs 
after  the  last  will  was  excccited.  So  far  as  these  go  only  to  show  the 
intention  of  Miss  Jacques  in  advancing  the  $3,000  they  are  immaterial, 
unless  they  also  show  an  admission  by  Mrs.  Downs  that  she  received 
the  payment  in  satisfaction  of  the  subsequent  legacy.  They  do  not 
show  any  such  admission.  On  the  contrary,  Mrs.  Downs  said  that 
she  was  to  have  the  $10,000,  and  Miss  Jacques  said  that  $3,000  of  it 
had  been  paid.  The  fact  that  Mrs.  Downs  made  no  reply  to  this  can- 
not be  taken  as  an  admission  of  its  truth.  She  had  already  stated  her 
understanding  of  it,  and  the  remark  of  Miss  Jacques  was  in  answer 
to  her.  She  cannot  be  held  to  have  assented  to  Miss  Jacques'  state- 
ment, because  she  did  not  continue  the  discussion.  The  report  does 
not  find  that  Mrs.  Downs  accepted  the  advance  of  $3,000  with  the  un- 
derstanding that  it  should  be  in  satisfaction  pro  tanto  of  a  future  lega- 
cy, and  the  facts  and  evidence  reported  do  not  show  that  she  received 
it  with  such  understanding  or  that  she  agreed  that  it  should  be  so 
applied.  As  no  contract  is  found  or  can  be  inferred,  it  is  not  necessary 
to  consider  the  further  objection  made  by  the  executor  that  the  legacies 
are  substantially  different.  The  legacy  which  was  adeemed  in  part 
was  to  Miss  Smith  alone,  and  would  lapse  by  her  death,  and  was  on 
condition  that  she  lived  with  the  testatrix  until  her  decease,  and  it  con- 
formed to  the  original  agreement  between  the  parties.  The  subsequent 
legacy  was  without  condition,  and  included  children  of  Mrs.  Downs  if 
she  did  not  herself  survive  the  testatrix. 

Without  deciding  that  a  promise  to  accept  a  present  sum  in  satisfac- 
tion of  a  future  legacy  in  the  terms  of  the  former  could  not  be  extended 
to  the  different  legacy  actually  given,  we  think  that  it  does  not  appear 
that  the  payment  was  received  in  satisfaction  pro  tanto  of  any  future 
legacy.    Decree  affirmed.'^ 

61  "The  doctrine  of  satisfaction  presupposes  that  there  is  some  obligation 
to  be  satisfied;  but  a  completed  gift  is  a  completed  gift  and  cannot  require 
satisfaction.  Thus  if  I  establish  my  son  in  trade,  buy  a  business  for  him  for 
£5,000,  and  pay  the  money,  or  if  when  my  daughter  marries  I  transfer  £5,000 
worth  of  shares  to  the  trustees  of  her  settlement,  here  is  a  completed  gift; 
if  afterwards  I  bequeath  £5,000,  or  any  other  sum.  to  my  son  or  daughter, 
there  can  in  this  case  be  no  talk  of  satisfaction,  for  tiiere  is  nothiug  to 
be  satisfied."  Maitland's  Equity  and  the  Forjus  of  Action  at  Common  Law, 
183. 


746  PROBATE  AND    ADMINISTRATION.  (Fart   3 

In  re  BRIDLE. 
(Court  of  Common  Pleas  Division,  1879.     4  C.  P.  D.  336.) 

Petition  by  Louisa  Bridle,  asking  for  the  payment  out  of  court  to 
her  of  i200. 

John  Bridle  died  in  1877.  By  his  will,  made  in  1872,  he  bequeathed 
to  the  petitioner  the  mortgage  of  £200  which  he  had  secured  to  him 
on  a  mortgage  of  premises  in  Melcombe  Regis.  The  petitioner,  against 
the  objection  of  the  executors  of  John  Bridle's  will  and  6i  the  residu- 
ary legatees  thereunder,  introduced  evidence  that  in  1873,  the  mortgage 
above  mentioned  was  paid  off;  that  John  Bridle  paid  the  mortgage 
money  into  the  bank  of  Williams  &  Co. ;  that  he  had  a  regular  account 
at  that  bank ;  that  he  did  not  pay  this  money  into  his  general  account, 
but  had  it  entered  in  his  name  to  a  separate  account,  which  he  opened 
with  the  bank  for  that  purpose ;  that  he  received  a  separate  pass-book ; 
that  he  handed  this  pass-book  into  the  custody  of  the  petitioner,  stat- 
ing to  her,  when  he  did  so,  that  it  was  the  money  he  had  received  from 
the  mortgage,  and  that  she  was  to  keep  the  book,  as  he  had  willed  the 
money  to  her,  for  her  to  receive  it  after  his  death,  and  stating  that  it 
would  show  that  the  money  was  for  her,  and  would  do  away  with  the 
necessity  of  altering  his  will  in  consequence  of  the  mortgage  being  paid 
off;  and  that  the  £200  remained  intact  in  the  bank  down  to  the  death 
of  John  Bridle,  he  only  drawing  the  interest  from  time  to  time,  and  the 
petitioner  retaining  possession  of  the  pass-book.  This  evidence  was 
uncontradicted.  Williams  &  Co.  paid  the  money  into  a  post-office  sav- 
ings bank  in  the  name  of  the  registrar  of  the  County  Court  to  await 
the  decision  of  the  court. 

The  judge  ordered  the  costs  of  all  parties  to  be  paid  out  of  the 
£200  and  the  balance  to  be  paid  to  the  petitioner.  The  executors  and 
residuary  legatees  appealed. 

Denman,  J.®^  The  testator  by  his  will  bequeathed  to  the  petitioner 
"the  mortgage  debt  of  £200  which  he  had  secured  to  him  on  a  mort- 
gage of  premises  in  King  street,  Melcombe  Regis,  belonging  to  Wil- 
liam Hardy."  It  is  impossible  to  read  those  words  without  seeing  that 
the  obvious  intention  of  the  testator  was  to  give  her  the  mortgage  it- 
self. Has  there,  then,  been  an  ademption?  That  depends  upon  the 
rule  stated  by  Lord  Hardwicke,  C,  in  Humphreys  v.  Humphreys,  2 
Cox,  C.  C.  184,  where  he  said  that  "the  only  rule  to  be  adhered  to  was, 
to  see  whether  the  subject  of  the  specific  bequest  remained  in  specie 
at  the  time  of  the  testator's  death,  for,  if  it  did  not,  then  there  must 
be  an  end  of  the  bequest;  and  that  the  idea  of  discussing  what  were 
the  particular  motives  and  intention  of  the  testator  in  each  case  in 
destroying  the  subject  of  the  bequest,  would  be  productive  of  endless 
uncertainty  and  confusion."     *     *     *     j^  the  case  of  a  specific  be- 

«2  Parts  only  of  the  opinions  are  given. 


Ch.    4)  PAYMENT   OF   LEGACIES   AND    SHARES.  747 

quest  of  a  thing  which  has  ceased  to  exist  during  the  Hfetime  cf  the 
testator,  the  legacy  is  adeemed. 

LiNDLEY,  J.  I  am  of  the  same  opinion.  The  first  question  here  is 
what  was  bequeathed  to  Louisa  Bridle.  It  is  a  bequest  of  a  mortgage 
— a  specific  legacy.  The  only  other  question  is,  where  is  it?  It  is  not 
to  be  found;  and  there  is  an  end  of  it.  *  *  *  And  see  the  judg- 
ment of  Lord  Thurlow  in  Stanley  v.  Potter,  2  Cox,  C.  C.  ISO,  where  it 
was  held  that  a  bequest  of  a  debt  is  adeemed  by  the  debt  being  paid  to 
the  testator  in  his  lifetime,  whether  the  payment  be  compulsory  or  vol- 
untary, or  whether  the  sum  be  expressed  in  the  bequest  or  the  debt  be- 
queathed generally.^^  For  these  reasons,  I  am  of  opinion  that  the  peti- 
tioner is  not  entitled  to  the  £200,  and  the  judgment  of  the  County  Court 
judge  must  be  reversed,  with  costs. 

Judgment  reversed.®* 


COWPER  V.  SCOTT. 

(High  Court  of  Chancery,  1731.    3  P.  Wrns.  119.) 

The  last  point  of  the  case®^  was,  the  testator  Bedel  had  devised  all 
his  personal  estate  in  sevenths,  viz.,  one  seventh  to  each  child;  after 
which  his  son,  being  the  eldest  child,  died  in  the  testator's  lifetime,  and 
then  the  testator  died,  by  which  means  the  son's  seventh  became  distrib- 
utable according  to  the  statute,  the  executors  being  declared  by  the 
will  to  be  but  trustees;  and  four  of  the  testator's  daughters  being 
married,  and  having  been  advanced  by  their  father  in  his  lifetime,  it 

6  3  See  Wrckoff  v.  Perrine's  Ex'rs.  37  X.  J.  Eq.  IIS  (1SS3)  ;  Succession  of 
Batchelor,  4S  La.  Ann.  27S.  19  South.  2S3  (1S96) :  Rogers  v.  Rogers,  67  S. 
C.  16S.  45  S.  R  176.  100  Am.  St.  Rep.  721  (1903):  Tanton  v.  Keller.  1G7 
111.  129.  47  N.  K  376  (1S97).  But  see  In  re  Bradley's  Will,  73  Tt.  253,  50 
Atl.   1072  (1901). 

"The  bequest  was  of  certain  notes  [for  $1,200]  secured  by  mortgage  of 
land.  The  testator  surrendered  those  notes  in  his  lifetime,  and  took  a  re- 
conveyance of  the  property  for  which  they  had  been  given.  He  afterwards 
sold  the  same  property  to  another  and  took  notes  [for  $600]  for  it  that  were 
unpaid  when  he  died.  We  think  the  legacy  had  been  adeemed  and  that  the 
notes  now  held  by  the  executor  constitute  a  part  of  the  estate  to  be  distribut- 
ed among  the  heirs.  The  legacy  was  specific  and  the  subject  of  It  had  been 
disposed  of  by  the  testator  in  his  lifetime."  Haskell,  J.,  in  Tolman  v.  Tol- 
man.  So  Me.  317,  320,  321.  27  Atl.  1S4.  1S5  (1S93).  But  that  taking  renewal 
notes  will  not  be  an  ademption  of  notes  bequeathed,  and  the  new  notes  will 
pass,  was  held  in  Ford  v.  Ford.  23  N.  H.  212  (1S51). 

6  4  There  is  a  broad  distinction  between  the  gift  of  a  debt  as  a  debt  and 
the  sum  of  money  produced  when  the  debt  has  been  recovered  and  has  ceased 
to  be  a  debt.  In  the  one  instance  the  legacy  is  specific,  and  the  collection  of 
the  debt  in  the  testator's  lifetime  will  adeem  the  legacy.  On  the  other  hand, 
the  gift  extends  to  and  includes  the  fimd  in  the  altered  state,  because,  being 
a  gift  of  the  fund,  the  thing  given  will  pass,  though  it  be  not  in  the  precise 
state  it  was  when  the  will  was  executed."  McSherry.  J.,  in  Littis  v.  Hance, 
SI  Md.  416,  432.  32  Atl.  343  (1S95).  Compare  Georgia  Infirmary,  etc.,  v. 
Jones  (C.  C.)  37  Fed.  750  (1SS9). 

6  5  The  other  points  in  the  case  are  omitted. 


748  PROBATE  AND    ADMINISTRATION.  (Part   3 

was  therefore  contended,  that  this  seventh,  which  was  the  son's  share, 
becoming-  distributable  according-  to  the  statute,  the  four  sisters,  who 
had  been  advanced  by  their  father  in  his  hfetime,  ought  to  bring  their 
portions  into  hotchpot ;  for  if  the  children  are  within  the  statute  as  to 
one  clause,  they  must  be  within  it  as  to  every  clause  thereof. 

Sed  curia  [Sir  Joseph  Jekyi^l,  M.  R.]  contra.  Though  this  seventh 
part  devised  to  the  son,  did,  by  his  dying  in  his  father's  lifetime,  for 
necessity's  sake  become  distributable  according  to  the  statute,  yet  I 
take  this  not  to  be  in  strictness  within  the  same,  because  here  is  an  ex- 
ecutor, and  therefore  the  testator  cannot  be  said  to  have  died  intestate, 
though  it  is  true  the  executor,  being  but  a  trustee,  is,  by  an  equitable 
construction,  and  by  means  of  an  accident  that  has  happened  since  the 
making  of  the  will,  a  trustee  for  the  next  of  kin  according  to  the  stat- 
ute. However,  this  is  (as  I  said)  merely  through  necessity,  and  be- 
cause no  one  else  can  take ;  but  as  to  children  who  were  advanced  in 
their  father's  lifetime,  bringing  such  their  advancements  into  hotch- 
pot, that  is  to  be  only  in  the  case  of  a  total  intestacy,  or  where  the 
whole  personal  estate,  not  where  part  only,  and  that  perhaps  but  a  very 
small  part  (as  here),  becomes  distributable;  neither  would  it  be  rea- 
sonable for  the  children  so  to  do.  And  it  is  observable  that  Mr.  Lut- 
wyche,  who  was  of  counsel  with  the  deceased  daughter's  husband,  and 
whose  client's  interest  it  was  to  have  the  advancements  of  the  four 
married  daughters  brought  into  hotchpot,  gave  up  the  point,  saying 
it  had  been  so  adjudged  in  Sir  George  Wheeler's  Case."' 


HOLT  V.  LIBBY. 
'     (Supreme  Judicial  Court  of  Maine,  1S88.     80  Me.  329,  14  Atl.  201.) 
See  ante,  p.  697,  for  a  report  of  the  case. 


In  re  RATTENBERRY. 

RAY  V.  GRANT. 

(Supreme  Court  of  Judicature,  Chancery  Division.    [1906]  1  Ch.  667.) 

SwiNFEN  Eady,  J.*  The  rule  is  that  a  legacy  to  a  creditor  of  an 
amount  equal  to  or  greater  than  the  debt  is  prima  facie  to  be  consider- 
ed a  satisfaction  of  the  debt. 

««  Reported  sub  nom.  Wlaeoler  v.  Stieer  in  Mos.  288.  301  (1730).  In  In  re 
Roby,  Howlett  v.  Newiugton,  [1908]  1  Cb.  71.  the  doctrine  that,  in  applying  the 
analogy  of  the  statute  of  distribution  to  the  case  of  partial  intestacy  of  the 
beneficial  interest  in  undisposed  of  residue,  the  advances  made  by  the  testa- 
tor in  his  life  time  need  not  be  brought  into  hotchpot  was  reaffirmed.  Though 
the  decision  was  unanimous,  Fletcher  Moulton,  L.  J.,  concurred  "somewhat 
reluctantly." 

*  The  statement  of  facts  is  omitted. 


Ch.    4)  PAYMENT   OF   LEGACIES   AND    SHARES.  749 

This  rule  was  established  two  centuries  ago;  but  no  sooner  was  it 
established  than  it  was  frequently  disapproved  of,  and  exceptions  were 
engrafted  upon  it.  In  In  re  Horlock,  [1895]  1  Ch.  516,  522,  Stirling, 
J.,  said  that  he  joined  with  the  many  judges  who  had  disapproved  the 
rule  laid  down,  and  that  he  equally  disapproved  of  the  exceptions  which 
had  been  grafted  on  it,  but  that  both  were  binding  upon  him ;  they  are 
both  equally  binding  upon  me.  The  present  case  is  in  my  opinion  with- 
in the  rule,  unless  there  is  sufficient  indication  of  intention  to  exclude  it. 

The  debt  was  il50  money  borrowed  by  the  testatrix  in  1899  from 
her  sister,  the  plaintiff,  upon  which  the  testatrix  paid  interest  at  5  per 
cent,  during  her  life,  and  it  was  payable  on  demand. 

The  legacy  is  a  general  pecuniary  legacy  of  £400  without  any  time 
being  specified  for  payment,  and  without  any  mention  of  interest. 
The  will  bears  date  November  23,  1903,  and  does  not  contain  any  di- 
rection to  pay  debts. 

It  is  sought  to  exclude  the  rule  on  the  ground  that  the  debt  carries 
interest  from  the  death  and  the  legacy  only  from  one  year  after  the 
death.  But  it  was  decided  by  Lord  Hardwicke  in  Clark  v.  vSewell,  3 
Atk.  96,  98,  that  where  the  legacy  is  in  satisfaction  of  a  debt  and  no 
time  is  fixed  for  payment  of  the  legacy  it  carries  interest  from  the 
death  of  the  testator.  If  the  will  mentions  a  date  for  payment,  then 
interest  will  only  run  from  that  date;  and  this  was  the  ground  upon 
which  Haynes  v.  Mico,  1  Bro.  C.  C.  129,  and  Adams  v.  Lavender  (1824) 
1  McCl.  &  Y.  41,  were  decided,  as  pointed  out  by  Stirling,  J.  Indeed, 
in  Clark  v.  Sewell,  3  Atk.  96,  97,  Lord  Hardwicke  said:  "According 
to  the  rule  of  this  court,  a  legacy  that  ought  to  be  deemed  a  satisfac- 
tion must  take  place  immediately  after  the  death  of  the  testator;  for 
the  debt,  whether  of  a  principal  sum  or  for  interest,  is  due  at  the  death 
of  the  testator,  and  therefore  the  legacy  must  be  so  too.  *  *  * 
There  is  no  case  to  make  a  legacy  a  satisfaction  of  a  debt,  where  the 
legacy  is  not  due  at  the  time  of  the  testator's  death,  but  is  made  con- 
tingent, and  to  take  place,  at  a  future  day,  *  *  *  whether  the  post- 
poning the  legacy  is  a  month  only  or  a  longer  time,  it  makes  no  manner 
of  difference."  Lord  Hardwicke,  in  referring  to  a  legacy  that  "must 
take  place  immediately  after  the  death  of  the  testator,"  means  a  legacy 
the  payment  of  which  is  not  postponed  by  the  testator.  A  legacy  is 
within  the  rule  laid  down  by  Lord  Hardwicke  if  it  is  an  immediate 
legacy,  although,  of  course,  only  payable  in  a  due  course  of  adminis- 
tration and  after  debts  and  funeral  expenses  have  been  provided  for. 

In  Fowler  v.  Fowler,  3  P.  Wms.  353,  where  the  debt  due  at  the  date 
of  the  will  was  £200,  for  arrears  of  pin  money,  and  a  general  pecuniary 
legacy  of  £500  was  given,  Talbot,  L.  C,  held  that  the  legacy  was  a 
satisfaction  of  the  debt.  In  Gaynon  v.  Wood,  1  Dick.  331,  there  was 
a  bond  debt  of  £200  and  a  legacy  of  £500  given  to  the  creditor  by  a 
subsequent  codicil,  and  the  Master  of  the  Rolls  held  that  the  legacy 
must  be  taken  in  satisfaction  of  the  debt,  and  the  fact  that  since  the 


750  PROBATE   AND    ADMINISTRATION.  (Part   3 

death  the  executors  had  paid  the  bond  debt  to  the  creditor  made  no 
difference  in  adjusting  the  rights  of  the  parties. 

So,  again,  In  re  Fletcher,  38  Ch.  D.  373,  376,  before  North,  J.,  is  an 
instance  of  a  legacy  being  given  in  satisfaction  of  a  debt,  where  the 
debt  carried  interest,  and  where  no  time  was  fixed  for  payment  of  the 
legacy.  In  that  case  the  debt  was  in  fact  paid  off  by  the  testator  in  his 
lifetime,  and  the  actual  decision  was  that  the  legacy  had  been  adeemed, 
but  the  learned  judge  first  considered  how  the  matter  would  have  stood 
if  the  debt  had  not  been  so  paid  off.  He  said:  "Suppose  the  debt  had 
not  been  paid,  could  the  widow  have  taken  the  debt  as  well  as  the  lega- 
cy? I  think  clearly  not."  The  fact,  therefore,  that  the  legacy  is  given 
generally,  without  any  reference  to  time  of  payment  or  interest,  will 
not  exclude  the  rule. 

Reliance  was  also  placed  on  the  fact  that  the  plaintiff  was  appointed 
executrix  and  could  retain  her  own  debt,  but  in  my  opinion  this  makes 
no  difference.  As  I  have  already  pointed  out,  in  the  case  of  Gaynon 
V.  Wood,  1  Dick.  331,  the  debt  had  been  actually  paid  by  the  executor. 
I  am  therefore  bound  by  the  authorities  to  which  I  have  referred  to 
hold  that  in  the  present  case  the  legacy  is  a  satisfaction  of  the  debt. 

The  distinctions  between  the  cases  on  the  satisfaction  of  debts  by 
annuities  are  very  slender,  as  may  be  seen  by  comparing  Atkinson  v. 
Littlewood,  L.  R.  18  Eq.  595,  before  Malins,  V.  C,  and  In  re  Dowse, 
50  L.  J.  Ch.  285,  before  Hall,  V.  C,  which  latter  case  was  followed  by 
Stirhng,  J,,  in  In  re  Horlock  (1895)  1  Ch.  516;  but  it  is  by  the  deci- 
sions on  cases  of  legacies,  which  leave  no  room  for  doubt,  that  the 
present  case  is  governed.®'' 

6  7  "A  legacy  by  a  debtor  to  a  creditor  will,  in  the  absence  of  any  evidence 
of  the  testator's  Intent,  be  presumed  to  have  been  given  in  payment  of  the 
debt,  if  the  debt  was  contracted  prior  to  the  malving  of  the  will,  and  the 
legacy  is  as  great  or  greater  than  the  debt.  The  rule  seems  to  have  little  or 
no  foundation  in  reason,  and  is  followed  with  rehictance.  It  does  not  apply 
where  a  debt  turns  out  to  be  due  on  an  account  current,  nor  where  the 
legacy  is  uncertain  or  contingent,  or  if  there  is  an  express  direction  to  pay 
debts,  or  if  there  is  a  difference  in  the  nature  of  the  debt  and  legacy,  or 
fn  the  times  in  which  they  are  respectively  payable,  or  where  the  legacy 
is  payable  upon  terms  less  advantageous  to  the  creditor,  or  where  the  debt 
accrued  after  the  making  of  the  will,  or  where  the  property  devised  is  of 
uncertain  value,  or  where  the  expressed  purpose  of  the  gift,  strictly  construed, 
would  not  include  a  debt  due  from  the  testator."  Gardner  on  Wills,  p.  571. 
See,  also,  note  to  Holt  v.  Libby,  reported  ante,  p.  697. 

"In  a  case  of  ademption,  where  the  will  is  first,  that  is  a  revocable  instru- 
ment, and  the  testator  has  an  absolute  power  of  revoking  or  altering  any 
gift  thereby  made.  But  where  the  obligation  is  earlier  in  date  than  the 
will,  the  testator  when  he  makes  his  will  is  under  a  liability  which  he  cannot 
revoke  or  avoid.  He  can  only  put  an  end  to  it  by  payment  or  by  making  a 
gift  with  the  condition,  expressed  or  implied,  that  the  legatees  shall  take 
the  gift  made  by  the  will  in  satisfaction  of  their  claim  under  the  previous 
obligation.  It  is  therefore  easier  to  assume  an  intention  to  adeem  than  an 
intention  to  give  a  legacy  in  lieu  or  in  satisfaction  of  an  existing  obligation." 
Cotton,  L.  J.,  in  In  re  Tussand,  9  Ch.  D.  3(>3,  380  (1878). 

In  Sharp  v.  Wightman,  205  Pa.  2S5,  54  Atl.  888  (1903),  it  was  held  that. 
In  case  the  testator's  intention  is  left  in  doubt  by  the  will,  evidence  outside 
the  will  may  be  received  to  show  whether  the  testator  intended  a  legacy 
to  his  son  to  be  an  extinguishment  of  the  latter's  indebtedness. 


Ch.  4j  PAYMENT  OF  LEGACIES' AND  SHARES.  751 

In  re  BRUCE. 

LAWFORD  V.  BRUCE. 

(Supreme  Court  of  Judicature,  Court  of  Appeal.     [1908]  2  Ch.  682.) 

Appeal  from  a  decision  of  Neville,  J.,  [1908]  1  Ch.  850. 

The  testator,  who  died  in  1882,  devised  and  bequeathed  his  real  and 
residuary  personal  estate  to  trustees  upon  trust  (in  the  events  which 
happened)  for  his  widow  for  life,  and  after  her  death  upon  trust  for 
his  seven  children  in  equal  shares.  James  Bruce  was  one  of  these 
children. 

In  1906  the  testator's  widow  died.  Some  old  papers  of  the  testator's 
were  then  found,  from  which  it  appeared  that  in  the  year  1878  he  had 
lent  his  sister,  one  Emily  Gordon,  £200  at  5  per  cent,  interest,  and  that 
no  payment  or  acknowledgment  in  respect  of  either  principal  or  interest 
had  been  made  since  1880. 

The  said  Emily  Gordon  had  died  in  1903,  having-  bequeathed  the 
residue  of  her  personal  estate  to  the  said  James  Bruce  and  having  ap- 
pointed him  one  of  her  executors.  The  said  Emily  Gordon's  will  had 
been  proved  by  both  executors,  her  estate  had  been  wound  up,  and 
James  Bruce  had  received  the  residue  of  her  personal  estate,  which 
amounted  to  about  £5,000. 

The  plaintiffs,  the  present  trustees  of  the  testator,  had  distributed 
and  paid  over  his  residuary  estate,  other  than  the  one-seventh  share 
payable  to  the  said  James  Bruce,  which  amounted  to  about  £1,700. 

The  present  summons  was  taken  out  by  the  trustees  for  the  pur- 
pose of  determining  whether  or  not  the  said  James  Bruce  was  bound  to 
bring  the  £200  debt  with  interest  from  1880  into  account  against  his 
one-seventh  share  of  the  testator's  estate. 

Neville,  J.,  held  that  the  principle  of  Courtenay  v.  Williams,  3  Hare, 
539,  on  appeal,  15  L.  J.  Ch.  201,  applied,  and  that  James  Bruce  must 
bring  the  debt  and  interest  into  account  against  his  share  in  his  father's 
residuary  estate. 

James  Bruce  appealed. 

Cozens-Hardy,  M.  R.^^  In  this  case  I  am  unable  to  agree  with  the 
decision  at  which  Neville,  J.,  has  arrived.  The  material  facts  are  very 
simple.  [His  Lordship  stated  them,  and  continued:]  The  claim  which 
is  raised  in  the  action  is  this :  "You,  James  Bruce,  are  not  entitled  to 
be  paid  in  full  your  share  of  your  father's  estate,  because  you  must 
deduct  from  that  share  the  amount  of  the  statute-barred  debt  which  was 
due  from  Emily  Gordon  and  from  her  executors  after  her  death."  It 
is  sought  to  support  that  view  by  reference  to  the  well-known  deci- 
sion in  Courtenay  v.  Williams,  3  Hare,  539,  15  L.  J.  Ch.  201. 

First  of  all,  what  was  Courtenay  v.  Williams?     It  was  a  case  in 

9  8  The  concurring  opinions  of  Fletcher  Moulton,  L.  J.,  and  of  Farwell,  L» 
J.,  are  omitted. 


752  PROBATE  AND    ADMINISTRATION.  (Part   3 

which  the  legatee  under  the  will  was  directly  and  legally  a  debtor  of  the 
testator's  estate.  True,  the  statute  of  limitations  had  barred  the  reme- 
dy, but  the  legal  liability  remained,  and  could  be  enforced  in  various 
ways  which  are  indicated  by  the  court,  e.  g.,  a  lien  on  any  moneys  she 
could  get  hold  of  later  on,  and  the  court  there  said,  "You  cannot  claim 
payment  in  full  of  the  assets  because  you,  in  respect  of  your  legal  lia- 
bility, must  be  regarded  as  having  an  asset  of  the  estate  in  your  hands 
for  which  you  must  account,"  or,  in  other  words,  you  must  be  consid- 
ered, to  the  extent  of  those  assets,  to  have  paid  yourself.  Neville,  J., 
in  his  judgment  treated  it, in  this  way.  He  said:  "It  seems  to  me  that 
the  trustees  of  the  testator's  estate  are  entitled  to  say  to  him,  'You  have 
in  your  hands,  as  residuary  legatee  of  your  aunt,  this  debt  which  with 
interest  has  remained  due  from  her  and  has  never  been  paid  to  the 
testator's  estate  and  ought  to  be  accounted  for.'  " 

I  am  entirely  unable  to  follow  that.  There  was  at  no  time  the  legal 
relation  of  debtor  and  creditor  between  James  Bruce  as  residuary 
legatee  and  the  testator.  It  is  quite  true  there  might  have  been,  apart 
from  the  statute  of  limitations,  a  right  in  the  creditor  to  follow  the  as- 
sets in  the  hands  of  the  residuary  legatee,  but  that  right  has  been  plain- 
ly lost  by  the  statute  of  limitations,  and,  there  bemg  no  possibility  of 
bringing  an  action  in  equity  against  James  Bruce,  I  fail  to  see  any 
foundation  for  the  doctrine  which  is  rehed  upon.  No  part  of  Emily 
Gordon's  assets  has  been  appropriated  or  has  been  retained  in  respect 
of  this  debt,  and  there  is  no  foundation,  as  it  seems  to  me,  for  the  sug- 
gestion that  James  Bruce,  in  his  character  of  residuary  legatee,  ever 
was  liable,  in  the  sense  of  being  equitably  liable,  to  pay  this  debt.  There 
was  no  legal  liability,  and  a  court  of  equity  always  considers  that  it 
must  regard  all  the  circumstances  of  the  case;  it  considers  the  ques- 
tion of  laches  and  all  such  matters  before  it  makes  an  order  to  refund 
and  do  what  is  just  and  right  between  the  parties.  In  the  present  case, 
I  can  scarcely  bring  myself  to  doubt  that  this  is  a  case  in  which  those 
equitable  considerations  ought  to  have  been  applied,  if  the  court  had 
been  asked  to  follow  assets  in  this  case.  But  this  is  not  a  case  of  fol- 
lowing assets  at  all.  There  was  never  any  time  when  there  was  any 
legal  liability,  and  the  whole  foundation  of  Courtenay  v.  Williams,  3 
Hare,  539,  15  L.  J.  Ch.  204,  was  that  there  was  a  legal  liability. 

With  great  respect  to  the  learned  judge,  I  think  his  decision  was 
wrong  and  that  this  appeal  must  be  allowed. 


APPENDIX 


ENGLISH  STATUTES 


Pago 

13  Edw.  I,  c.  19  (1285).  Administration .753 

13  Edw.  I,  c.  23  (1285),  Executors 753 

4  Edw.  Ill,  c.  7  (1330),  Executors 753 

25  Edw.  Ill,  c.  5  (1350),  Executors 753 

31  Edw.  Ill,  C.  11  (1357),  Administration ' 754 

21  Hen.  VIII,  c.  5,  §§  3,  4  (1529),  Administration 754 

32  Hen.  VIII,  c  1  (1540),  Statute  of  Wills 754 

34  &  35  Hen.  VIII,  c.  5  (1542),  Statute  of  Wills 754 

12  Car.  II,  c.  24,  S  1  (1660)  Abolition  of  Military  Tenures 754 

22  &  23  Car.  II,  c.  10  (1671),  Statute  of  Distributions 755 

29  Car.  II,  c.  3,  §§  5,  6,  12.  19-25  (1676),  Statute  of  Frauds 758 

1  Jac.  II,  c.  17,  §  7  (1685).  Distribution 760 

25  Geo.  n,  c.  6,  §§  1,  2,  10  (1752),  Attestation  of  Wills 760 

7  Wm.  IV,  &  1  Vict.  c.  26.  §§  1-3.  6-35  (1837),  Wills  Act 760 

15  &  IB  Vict  a  24,  §  1  (1852),  Wills  Act  Amendment  Act 767 


St.  13  Edw.  I  (Westm.  II)  c.  19  (1285).— Whereas  after  the  death 
of  a  person  dying  intestate,  which  is  bounden  to  some  other  for  debt, 
the  goods  come  to  the  ordinary  to  be  disposed ;  (2)  the  ordinary  from 
henceforth  shall  be  bound  to  answer  the  debts  as  far  forth  as  the  goods 
of  the  dead  will  extend,  in  such  sort  as  the  executors  of  the  same  party 
should  have  been  bounden,  if  he  had  made  a  testament. 

St.  13  Edw.  I  (Westm.  II,  1285)  c.  23.— Executors  from  henceforth 
shall  have  a  writ  of  accompt  and  the  same  action  and  process  in  the 
same  writ  as  the  testator  might  have  had  if  he  had  lived. 

St.  4  Edw.  Ill,  c.  7  (1330). — Item,  Whereas  in  times  past  executors 
have  not  had  actions  for  a  trespass  done  to  their  testators,  as  of  the 
goods  and  chattels  of  the  same  testators  carried  away  in  their  life, 
and  so  such  trespasses  have  hitherto  remained  unpunished;  (2)  it  is 
enacted,  that  the  executors  in  such  cases  shall  have  an  action  against 
the  trespassers,  and  recover  their  damages  in  like  manner,  as  they, 
whose  executors  they  be,  should  have  had  if  they  were  in  life. 

St.  25  Edw.  Ill,  c.  5  (1350).— Item,  it  is  accorded  and  established 
that  executors  of  executors  shall  have  actions  of  debts,  accompts  and 
of  goods  carried  away  of  the  first  testators;  (2)  and  execution  of 
statutes  merchants  and  recognizances  made  in  court  of  record  to  the 
first  testator,  in  the  same  manner  as  the  first  testator  should  have  had 
if  he  were  in  life,  as  well  of  actions  of  the  time  past  as  of  the  time  to 
CosT.WiLLs^S  (753) 


754  APPENDIX. 

come,  in  all  cases  where  judgment  is  not  yet  given  betwixt  such  exec- 
utors; (3)  but  that  the  judgments  given  to  the  contrary  to  this  article 
in  times  past  shall  stand  in  their  force;  (4)  and  that  the  same  execu- 
tors of  executors  shall  answer  to  other  of  as  much  as  they  have  re- 
covered of  the  goods  of  the  first  testators,  as  the  first  executors  should 
do  if  they  were  in  full  life. 

St.  31  Edw.  Ill,  c.  11  (1357). — Item,  it  is  accorded  and  assented, 
that  in  case  where  a  man  dieth  intestate,  the  ordinaries  shall  depute 
the  next  and  most  lawful  friends  of  the  dead  person  intestate  to  admin- 
ister his  goods;  (2)  which  deputies  shall  have  an  action  to  demand  and 
recover  as  executors  the  debts  due  to  the  said  person  intestate  in  the 
king's  court,  for  to  administer  and  dispend  for  the  soul  of  the  dead; 
( 3)  and  shall  answer  also  in  the  king's  court  to  other  to  whom  the  said 
dead  person  was  holden  and  bound,  in  the  same  manner  as  executors 
shall  answer.  (4)  And  they  shall  be  accountable  to  the  ordinaries,  as 
executors  be  in  the  case  of  testament,  as  well  of  the  time  past  as  of  the 
time  to  come. 

St.  21  Hen.  VIII,  c.  5,  §§  3,  4  (1529).— Ill  *  *  *  (6)  And  in 
case  any  person  die  intestate,  or  that  the  executors  named  in  any  such 
testament  refuse  to  prove  the  said  testament,  then  the  said  ordinary,  or 
other  person  or  persons  having  authority  to  take  probate  of  testaments, 
as  is  abovesaid,  shall  grant  the  administration  of  the  goods  of  the  tes- 
tator, or  person  deceased,  to  the  widow  of  the  same  person  deceased, 
or  to  the  next  of  his  kin,  or  to  both,  as  by  the  discretion  of  the  same 
ordinary  shall  be  thought  good,  taking  surety  of  him  or  them,  to  whom 
shall  be  made  such  commission,  for  the  true  administration  of  the 
goods,  chattels,  and  debts,  which  he  or  they  shall  be  so  authorized  to 
minister;  (7)  and  in  case  where  divers  persons  claim  the  administra- 
tion as  next  of  kin,  which  be  equal  in  degree  of  kindred  to  the  testator 
or  person  deceased,  and  where  any  person  only  desireth  the  administra- 
tion as  next  of  kin,  where  indeed  divers  persons  be  in  equality  of  kin- 
dred, as  is  aforesaid,  that  in  every  such  case  the  ordinary  to  be  at  his 
election  and  liberty  to  accept  any  one  or  more  making  request,  where 
divers  do  require  the  administration. 

IV.  Or  where  but  one  or  more  of  them,  and  not  all  being  in  equality 
of  degree,  do  make  request,  then  the  ordinary  to  admit  the  widow,  and 

him  or  them  only  making  request,  or  any  one  of  them  at  his  pleasure. 

*  ♦     ♦ 

Sts.  32  Hen.  VIII,  c.  1  ClSlO),  and  34  &  35  Hen.  VIII,  c.  5  (1542). 
— See  extracts,  ante,  p.  112.^ 

St.  12  Car.  II,  c.  24  (1660).     *     *     *     And  it  is  hereby  enacted 

*  *     *     that  all  tenures  by  knight-service  of  the  king,  or  of  any  oth- 

1  As  the  Statutes  of  Wills  are  sufficiently  stated  ante,  p.  112,  and  their  effect 
explained  in  the  passages  ante.  pp.  3,  5,  and  as,  if  printed  in  full,  they 
would  occupy  too  much  space,  they  are  omitted. 


ENGLISH     STATUTES,  <0D 

er  person,  and  by  knight-service  in  capite,  and  by  socage  in  caplte  oi 
the  king,  and  the  fruits  and  consequents  thereof,  happened  or  which 
shall  or  may  hereafter  happen  or  arise  thereupon  or  thereby,  be  taken 
away  and  discharged.  *  *  *  And  all  tenures  of  any  honours, 
manors,  lands,  tenements  or  hereditaments,  of  any  estate  of  inherit- 
ance at  the  common  law,  held  either  of  the  king  or  of  any  other  person 
or  persons,  bodies  politick  or  corporate,  are  hereby  enacted  to  be 
turned  into  free  and  common  socage,  to  all  intents  and  purposes, 
*  *  *  and  shall  be  so  construed,  adjudged  and  deemed  to  be  from 
the  said  twenty-fourth  day  of  February,  one  thousand  six  hundred 
forty-five,  and  forever  thereafter,  turned  into  free  and  common 
socage;  any  law,  statute,  custom,  or  usage  to  the  contrary  hereof  in 
any  wise  notwithstanding.^ 

St.  22  &  23  Car.  II,  c.  10  (1G71).  An  Act  for  the  better  settling  of 
intestates'  estates.  Be  it  enacted  by  the  king's  most  excellent  majesty, 
with  the  advice  and  consent  of  the  Lords  Spiritual  and  Temporal,  and 
the  Commons  in  this  present  Parliament  assembled,  and  by  the  author- 
ity of  the  same,  that  all  ordinaries,  as  well  the  judges  of  the  prerogative 
courts  of  Canterbury  and  York  for  the  time  being,  as  all  other  ordi- 
naries and  ecclesiastical  judges,  and  every  of  them,  having  power  to 
commit  administration  of  the  goods  of  persons  dying  intestate,  shall 
and  may  upon  their  respective  granting  and  committing  of  adminis- 
tration of  the  goods  of  persons  dying  intestate,  after  the  first  day  of 
June  one  thousand  six  hundred  seventy  and  one,  of  the  respective 
person  or  persons  to  whom  any  administration  is  to  be  committed,  take 
sufficient  bonds  with  two  or  more  able  sureties,  respect  being  had_  to 
the  value  of  the  estate,  in  the  name  of  the  ordinary,  with  the  condition 
in  form  and  manner  following,  mutatis  mutandis,  viz.: — 

II.  The  condition  of  this  obligation  is  such,  that  if  the  within  bound- 
en  A.  B.  administrator  of  all  and  singular  the  goods,  chattels  and 
credits  of  C.  D.  deceased,  do  make  or  cause  to  be  made,  a  true  and 
perfect  inventory  of  all  and  singular  the  goods,  chattels  and  credits  of 
the  said  deceased,  which  have  or  shall  come  to  the  hands,  possession 
or  knowledge  of  him  the  said  A.  B.  or  into  the  hands  and  possession 
of  any  other  person  or  persons  for  him,  and  the  same  so  made  do 

exhibit  or  cause  to  be  exhibited  into  the  registry  of court,  at  or 

before  the  day  of  next  ensuing;    (2)  and  the  same 

goods,  chattels  and  credits,  and  all  other  the  goods,  chattels  and  credits 
of  the  said  -deceased  at  the  time  of  his  death,  which  at  any  time  after 
shall  come  to  the  hands  or  possession  of  the  said  A.  B.  or  into  the 
hands  and  possession  of  any  other  person  or  persons  for  him,  do  well 
and  truly  administer  according  to  law;  (3)  and  further  do  make  or 
cause  to  be  made,  a  true  and  just  account  of  his  said  administration, 

2  A  part  of  §  1  only  of  the  statute  is  here  given.    The  effect  of  the  statute 
is  explained  in  the  passages,  ante,  pp.  3,  5,  6. 


756  APPENDIX. 

at  or  before  the day  of .    And  all  the  rest  and  residue  of 

the  said  goods,  chattels  and  credits  which  shall  be  found  remaining 
upon  the  said  administrator's  account,  the  same  being  first  examined 
and  allowed  of  by  the  judge  or  judges  for  the  time  being  of  the  said 
court,  shall  deliver  and  pay  unto  such  person  or  persons  respectively, 
as  the  said  judge  or  judges  by  his  or  their  decree  or  sentence,  pursuant 
to  the  true  intent  and  meaning  of  this  Act,  shall  limit  and  appoint.  (4) 
And  if  it  shall  hereafter  appear,  that  any  last  will  and  testament  was 
made  by  the  said  deceased,  and  the  executor  or  executors  therein  named 
do  exhibit  the  same  into  the  said  court,  making  request  to  have  it  al- 
lowed and  approved  accordingly,  if  the  said  A.  B.  within-bounden, 
being  thereunto  required,  do  render  and  deliver  the  said  letters  of  ad- 
ministration (approbation  of  such  testament  being  first  had  and  made) 
in  the  said  court ;  then  this  obligation  to  be  void  and  of  none  effect,  or 
else  to  remain  in  full  force  and  virtue. 

III.  Which  bonds  are  hereby  declared  and  enacted  to  be  good  to  all 
intents  and  purposes,  and  pleadable  in  any  courts  of  justice;  (2)  and 
also  that  the  said  ordinaries  and  judges  respectively,  shall  and  may, 
and  are  enabled  to  proceed  and  call  such  administrators  to  account,  for 
and  touching  the  goods  of  any  person  dying  intestate;  (3)  and  upon 
hearing  and  due  consideration  thereof,  to  order  and  make  just  and 
equal  distribution  of  what  remaineth  clear  (after  all  debts,  funerals 
and  just  expenses  of  every  sort  first  allowed  and  deducted)  amongst 
the  wife  and  children,  or  children's  children,  if  any  such  be,  or  other- 
wise to  the  next  of  kindred  to  the  dead  person  in  equal  degree,  or  le- 
gally representing  their  stocks  pro  suo  cuique  jure,  according  to  the 
laws  in  such  cases,  and  the  rules  and  limitation  hereafter  set  down ; 
and  the  same  distributions  to  decree  and  settle,  and  to  compel  such 
administrators  to  observe  and  pay  the  same,  by  the  due  course  of  his 
Majesty's  ecclesiastical  laws:  (4)  saving  to  every  one,  supposing  him 
or  themselves  aggrieved,  right  of  appeal  as  was  always  in  such  cases 
used. 

IV.  Provided,  that  this  Act,  or  anything  herein  contained,  shall  not 
anyways  prejudice  or  hinder  the  customs  observed  within  the  city  of 
London  or  within  the  province  of  York  or  other  places,  having  known 
and  received  customs  peculiar  to  them,  but  that  the  same  customs  may 
be  observed  as  formerly;  anything  herein  contained  to  the  contrary 
notwithstanding. 

V.  Provided  always,  and  be  it  enacted  by  the  authority  aforesaid, 
that  all  ordinaries  and  every  other  person  who  by  this  Act  is  enabled 
to  make  distribution  of  the  surplusage  of  the  estate  of  any  person  dying 
intestate,  shall  distribute  the  whole  surplusage  of  such  estate  or  estates 
in  manner  and  form  following;  that  is  to  say,  (2)  one  third  part  of  the 
said  surplusage  to  the  wife  of  the  intestate,  and  all  the  residue  by  equal 
portions,  to  and  amongst  the  children  of  such  persons  dying  intestate, 
aod  such  persons  as  legally  represent  such  children,  in  case  any  of  the 


ENGLISH    STATUTES.  757 

said  children  be  then  dead,  other  than  such  child  or  children  (not  being 
heir  at  law)  who  shall  have  any  estate  by  the  settlement  of  the  intes- 
tate, or  shall  be  advanced  by  the  intestate  in  his  lifetime,  by  portion  or 
portions  equal  to  the  share  which  shall  by  such  distribution  be  allotted 
to  the  other  childr£n  to  whom  such  distribution  is  to  be  made:  (3)  and 
in  case  any  child,  other  than  the  heir  at  law,  who  shall  have  any  estate 
by  settlement  from  the  said  intestate,  or  shall  be  advanced  by  the  said 
intestate  in  his  lifetime  by  portion  not  equal  to  the  share  which  will  be 
due  to  the  other  children  by  such  distribution  as  aforesaid;  then  so 
much  of  the  surplusage  of  the  estate  of  such  intestate,  to  be  distributed 
to  such  child  or  children  as  shall  have  any  land  by  settlement  from  the 
intestate,  or  were  advanced  in  the  lifetime  of  the  intestate,  as- shall 
make  the  estate  of  all  the  said  children  to  be  equal  as  near  as  can  be 
estimated:  (4)  but  the  heir  at  law,  notwithstanding  any  land  that  he 
shall  have  by  descent  or  otherwise  from  the  intestate,  is  to  have  an 
equal  part  in  the  distribution  with  the  rest  of  the  children,  without  any 
consideration  of  the  value  of  the  land  which  he  hath  by  descent,  or 
otherwise  from  the  intestate. 

VI.  And  in  case  there  be  no  children  nor  any  legal  representatives 
of  them,  then  one  moiety  of  the  said  estate  to  be  allotted  to  the  wife 
of  the  intestate,  the  residue  of  the  said  estate  to  be  distributed  equally 
to  every  of  the  next  of  kindred  of  the  intestate,  who  are  in  equal  de- 
gree and  those  who  legally  represent  them. 

VII.  Provided,  that  "there  be  no  representatives  admitted  among 
collaterals  after  brothers'  and  sisters'  children;  (2)  and  in  case  there 
be  no  wife,  then  all  the  said  estate  to  be  distributed  equally  to  and 
amongst  the  children;  (3)  and  in  case  there  be  no  child,  then  to  the 
next  of  kindred  in  equal  degree  of  or  unto  the  intestate,  and  their 
legal  representatives  as  aforesaid,  and  in  no  other  manner  whatsoever. 

VIII.  Provided  also,  and  be  it  likewise  enacted  by  the  authority 
aforesaid,  to  the  end  that  a  due  regard  be  had  to  creditors,  that  no 
such  distribution  of  the  goods  of  any  person  dying  intestate  be  made 
till  after  one  year  be  fully  expired  after  the  intestate's  death;  (2)  and 
that  such  and  every  one  to  whom  any  distribution  and  share  shall  be 
allotted,  shall  give  bond  with  sufficient  sureties  in  the  said  courts,  that 
if  any  debt  or  debts  truly  owing  to  the  intestate  shall  be  afterwards 
sued  for  and  recovered,  or  otherwise  duly  made  to  appear ;  that  then 
and  in  every  such  case  he  or  she  shall  respectively  refund  and  pay  back 
to  the  administrator  his  or  her  ratable  part  of  that  debt  or  debts,  and 
of  the  costs  of  suit  and  charges  of  the  administrator  by  reason  of  such 
debt,  out  of  the  part  and  share  so  as  aforesaid  allotted  to  him  or  her, 
thereby  to  enable  the  said  administrator  to  pay  and  satisfy  the  said 
debt  or  debts  so  discovered  after  the  distribution  made  as  aforesaid. 

IX.  Provided  always,  and  be  it  enacted  by  the  authority  aforesaid, 
that  in  all  cases  where  the  ordinary  hath  used  heretofore  to  grant 
administration  cum  testamento  annexo,  he  shall  continue  so  to  do,  and 


758  APPENDIX. 

the  will  of  the  deceased  in  such  testament  expressed  shall  be  per- 
formed and  observed  in  such  manner  as  it  should  have  been  if  this  Act 
had  never  been  made.^ 

St.  29  Car.  II,  c.  3  (1676).— V.  And  be  it  further  enacted  by  the' 
authority  aforesaid,  That  from  and  after  the  said  four  and  twentieth 
day  of  June  all  devises  and  bequests  of  any  lands  or  tenements,  devis- 
able either  by  force  of  the  Statute  of  Wills,  or  by  this  Statute,  or  by 
force  of  the  custom  of  Kent,  or  the  custom  of  any  borough,  or  any 
other  particular  custom,  shall  be  in  writing,  and  signed  by  the  party 
so  devising  the  same,  or  by  some  other  person  in  his  presence  and  by 
his  express  directions,  and  shall  be  attested  and  subscribed  in  the 
presence  of  the  said  devisor  by  three  or  four  credible  witnesses,  or 
else  they  shall  be  utterly  void  and  of  none  effect. 

VI.  And  moreover,  no  devise  in  writing  of  lands,  tenements  or  here- 
ditaments, nor  any  clause  thereof,  shall  at  any  time  after  the  said  four 
and  twentieth  day  of  June  be  revocable,  otherwise  than  by  some  other 
will  or  codicil  in  writing,  or  other  writing  declaring  the  same,  or  by 
burning,  cancelling,  tearing  or  obliterating  the'  same  by  the  testator 
himself,  or  in  his  presence  and  by  his  directions  and  consent;  (2)  but 
all  devises  and  bequests  of  lands  and  tenements  shall  remain  and  con- 
tinue in  force,  until  the  same  be  burned,  cancelled,  torn  or  obliterated 
by  the  testator,  or  his  directions,  in  manner  aforesaid,  or  unless  the 
same  be  altered  by  some  other  will  or  codicil  in  writing,  or  other 
writing  of  the  devisor,  signed  in  the  presence  of  three  or  four  witness- 
es, declaring  the  same;  any  former  law  or  usage  to  the  contrary 
notwithstanding. 

XII.  And  for  the  amendment  of  the  law  in  the  particulars  follow- 
ing: (2)  Be  it  further  enacted  by  the  authority  aforesaid.  That  from 
henceforth  any  estate  pur  autcr  vie  shall  be  devisable  by  a  will  in  writ- 
ing, signed  by  the  party  so  devising  the  same,  or  by  some  other  person 
in  his  presence  arid  by  his  express  directions,  attested  and  subscribed 
in  the  presence  of  the  devisor  by  three  or  more  witnesses;  (3)  and  if 
no  such  devise  thereof  be  made,  the  same  shall  be  chargeable  in  the 
hands  of  the  heir,  if  it  shall  come  to  him  by  reason  of  a  special  occu- 
pancy as  assets  by  descent,  as  in  case  of  lands  in  fee-simple;  (4)  and 
in  case  there  be  no  special  occupant  thereof,  it  shall  go  to  the  executors 
or  administrators  of  the  party  that  had  the  estate  thereof  by  virtue  of 
the  grant,  and  shall  be  assets  in  their  hands. 

XIX.  And  for  prevention  of  fraudulent  practices  in  setting  up  nun- 
cupative wills,  which  have  been  the  occasion  of  much  perjury:  (2) 
Be  it  enacted  by  the  authority  aforesaid.  That  from  and  after  the 
aforesaid  four  and  twentieth  day  of  June  no  nuncupative  will  shall  be 
good,  where  the  estate  thereby  bequeathed  shall  exceed  the  value  of 

8  See  section  25  of  St.  29  Car.  II,  c.  3  (1G7G),  post,  p.  759,  and  St.  1  Jac.  II. 
<•.  17,  §  7  (1085) ,  post,  p.  7C0. 


ENGLISH    STATUTES.  '*^^ 

thirty  pounds,  that  is  not  proved  by  the  oaths  of  three  witnesses  (at 
the  least)  that  were  present  at  the  making  thereof;  (3)  nor  unless 
it  be  proved  that  the  testator  at  the  time  of  pronouncing  the  same,  did 
bid  the  persons  present,  or  some  of  them,  bear  witness,  that  such  was 
his  will,  or  to  that  effect;  (4)  nor  unless  such  nuncupative  will  were 
made  in  the  time  of  the  last  sickness  of  the  deceased,  and  m  the  house 
of  his  or  her  habitation  or  dwelling,  or  where  he  or  she  hath  been  resi- 
dent for  the  space  of  ten  days  or  more  next  before  the  making  of  such 
will,  except  where  such  person  was  surprised  or  taken  sick,  being  from 
his  own  home,  and  died  before  he  returned  to  the  place  of  his  or  her 

dwelling. 

XX.  And  be  it  further  enacted,  That  after  six  months  passed  after 
the  speaking  of  the  pretended  testamentary  words,  no  testimony  shall 
be  received  to  prove  any  will  nuncupative,  except  the  said  testimony, 
or  the  substance  thereof,  were  committed  to  writing  within  six  days 
after  the  making  of  the  said  will. 

XXI.  And  be  it  further  enacted.  That  no  letters  testamentary  or 
probate  of  any  nuncupative  will  shall  pass  the  seal  of  any  court,  till 
fourteen  days  at  the  least  after  the  decease  of  the  testator  be  fully 
expired;  (2)  nor  shall  any  nuncupative  will  be  at  any  time  received 
to  be  proved,  unless  process  have  first  issued  to  call  in  the  widow,  or 
next  of  kindred  to  the  deceased,  to  the  end  they  may  contest  the  same, 
if  they  please. 

XXII.  And  be  it  further  enacted :  That  no  will  in  writing  concern- 
ing any  goods  or  chattels,  or  personal  estate,  shall  be  repealed,  nor 
shall  any  clause,  devise  or  bequest  therein,  be  altered  or  changed  by 
any  words,  or  will  by  word  of  mouth  only,  except  the  same  be  in  the 
life  of  the  testator  committed  to  writing,  and  after  the  writing  thereof 
read  unto  the  testator,  and  allowed  by  him,  and  proved  to  be  so  done 
by  three  witnesses  at  the  least. 

XXIII.  Provided  always:  That  notwithstanding  this  act,  any  sol- 
dier being  in  actual  military  service,  or  any  mariner  or  seaman  being 
at  sea,  may  dispose  of  his  moveable,  wages  and  personal  estate,  as  he 
or  they  might  have  done  before  the  making  of  this  act. 

XXIV.  And  it  is  hereby  declared:  That  nothing  in  this  act  shall 
extend  to  alter  or  change  the  jurisdiction  or  right  of  probate  of  wills 
concerning  personal  estates,  but  that  the  prerogative  court  of  the 
archbishop  of  Canterbury,  and  other  ecclesiastical  courts,  and  other 
courts  having  right  to  the  probate  of  such  wills,  shall  retain  the  same 
right  and  power  as  they  had  before,  in  every  respect;  subject  never- 
theless to  the  rules  and  directions  of  this  act. 

XXV.  And  for  the  explaining  one  act  of  this  present  Parliament, 
intituled,  An  act  for  the  better  settling  of  intestates  estates  [23  &  23 
Car.  II,  c.  10]  :  (2)  Be  it  declared  by  the  authority  aforesaid:  That 
neither  the  said  act,  nor  any  thing  therein  contained,  shall  be  construed 
to  extend  to  the  estates  of  feme  coverts  that  shall  die  intestate,  but  that 


760  APPENDIX. 

then  husbands  may  demand  and  have  administration  of  their  rights, 
credits,  and  other  personal  estates,  and  recover  and  enjoy  the  same, 
as.  they  might  have  done  before  the  making  of  the  said  act. 

St  1  Jac.  II,  c.  17,  §  7  (1685).— Provided  also,  and  it  is  further 
enacted  by  the  authority  aforesaid,  that  if  after  the  death  of  a  father, 
any  of  his  children  shall  die  intestate  without  wife  or  children,  in  the 
lifetime  of  the  mother,  every  brother  and  sister,  and  the  representa- 
tives of  them,  shall  have  an  equal  share  with  her ;  anything  in  the  last- 
mentioned  acts  to  the  contrary  notwithstanding. 

St.  25  Geo.  II,  c.  6  (1752).— See  the  passage  from  Blackstone, 
quoted  ante,  pp.  186,  187. 

St.  7  Wm.  IV  &  1  Vict.  c.  26  (1837).— Be  it  enacted  by  the 
Queen's  most  excellent  majesty,  by  and  with  the  advice  and  consent  of 
the  Lords  Spiritual  and  Temporal,  and  Commons,  in  this  present  Par- 
liament assembled,  and  by  the  authority  of  the  same :  That  the  words 
and  expressions  hereinafter  mentioned,  which  in  their  ordinary  sig- 
nification have  a  more  confined  or  a  different  meaning,  •  shall  in  this 
Act,  except  where  the  nature  of  the  provision  or  the  context  of  the  Act 
shall  exclude  such  construction,  be  interpreted  as  follows;  (that  is  to 
say),  the  word  "will"  shall  extend  to  a  testament,  and  to  a  codicil,  and 
to  an  appointment  by  will  or  by  writing  in  the  nature  of  a  will  in  exer- 
cise of  a  power,  and  also  to  a  disposition  by  will  and  testament  or  de- 
vise of  the  custody  and  tuition  of  any  child,  by  virtue  of  an  Act  passed 
in  the  twelfth  year  of  the  reign  of  King  Charles  the  Second,  intituled 
An  Act  for  taking  azvay  the  Court  of  Wards  and  Liveries,  and  Ten- 
ures in  capite  and  by  Knights  Service,  and  Purveyance,  and  for  set- 
tling a  revenue  upon  His  Majesty  in  lieu  thereof,  or  by  virtue  of  an 
Act  passed  in  the  Parliament  of  Ireland  in  the  fourteenth  and  fifteenth 
years  of  the  reign  of  King  Charles  the  Second,  intituled  An  Act  for 
taking  away  the  Court  of  Wards  and  Liveries,  and  Tenures  in  capite 
and  by  Knights  Service,  and  to  any  other  testamentary  disposition ; 
and  the  words  "real  estate"  shall  extend  to  manors,  advowsons,  messu- 
ages, lands,  tithes,  rents,  and  hereditaments,  whether  freehold,  cus- 
tomary freehold,  tenant  right,  customary  or  copyhold,  or  of  any  other 
tenure,  and  whether  corporeal,  incorporeal,  or  personal,  and  to  any  un- 
divided share  thereof,  and  to  any  estate,  right,  or  interest  (other  than 
a  chattel  interest)  therein;  and  the  words  "personal  estate"  shall  ex- 
tend to  leasehold  estates  and  other  chattels  real,  and  also  to  moneys, 
shares  of  government  and  other  funds,  securities  for  money  (not  be- 
ing real  estates),  debts,  choses  in  action,  rights,  credits,  goods,  and  all 
other  property  whatsoever  which  by  law  devolves  upon  the  executor 
or  administrator,  and  to  any  share  or  interest  therein ;  and  every  word 
importing  the  singular  number  only  shall  extend  and  be  applied  to  sev- 
eral persons  or  things  as  well  as  one  person  or  thing ;  and  every  word 
importing  the  masculine  gender  only  shall  extend  and  be  applied  to  a 
female  as  well  as  a  male. 


ENGLISH   STATUTES. 


761 


II.  And  be  it  further  enacted,  That  an  Act  passed  in  the  thirty-sec- 
ond year  of  the  reign  of  King  Henry  the  Eighth,  intituled  The  Act  of 
Wills,  Wards,  and  Primer  Seisitis,  whereby  a  man  may  devise  tivo 
parts'  of  his  land;    and  also  an  Act  passed  in  the  thirty-fourth  and 
thirty-fifth  years  of  the  reign  of  the  said  King  Henry  the  Eighth,  intit- 
uled The  Bill  concerning  the  Explanation  of  Wills;   and  also  an  Act 
passed  in  the  Parliament  of  Ireland,  in  the  tenth  year  of  the  reign  of 
King  Charles  the  First,  intituled  An  Act  hozv  Lands,  Tenements,  etc., 
may  be  disposed  by  Will  or  otherzmse,  and  concerning   Wards  and 
Primer  Seisins;    and  also  so  much  of  an  Act  passed  in  the  twenty- 
ninth  year  of  the  reign  of  King  Charles  the  Second,  intituled  An  Act 
for  Prevention  of  Frauds  and  Perjuries,  and  of  an  Act  passed  in  the 
Parliament  of  Ireland  in  the  seventh  year  of  the  reign  of  King  Wil- 
liam the  Third,  intituled  An  Act  for  Prevention  of  Frauds  and  Perju- 
ries, as  relates  to  devises  or  bequests  of  lands  or  tenements,  or  to  the 
revocation  or  alteration  of  any  devise  in  writing  of  any  lands,  tene- 
ments, or  hereditaments,  or  any  clause  thereof,  or  to  the  devise  of  any 
estate,  pur  autre  vie,  or  to  any  such  estate  being  assets,  or  to  nuncu- 
pative wills,  or  to  the  repeal,  altering,  or  changing  of  any  will  in  writ- 
ing concerning  any  goods  or  chattels  or  personal  estate,  or  any  clause, 
devise,  or  bequest  therein ;   and  also  so  much  of  an  Act  passed  in  the 
fourth  and  fifth  years  of  the  reign  of  Queen  Anne,  intituled  An  Act 
for  the  Amendment  of  the  Law  and  the  better  Advancement  of  Justice, 
and  of  an  Act  passed  in  the  Parliament  of  Ireland  in  the  sixth  year 
of  the  reign  of  Queen  Anne,  intituled  An  Act  for  the  Amendment  of 
the  Law,  and  the  better  Advancement  of  Justice,  as  relates  to  witnesses 
to  nuncupative  wills ;   and  also  so  much  of  an  Act  passed  in  the  four- 
teenth year  of  the  reign  of  King  George  the  Second,  intituled  An  Act 
to  amend  the  Law  concerning  Common  Recoveries,  and  to  explain  and 
amend  an  Act  made  in  the  twenty-ninth  year  of  the  reign  of  King 
Charles  the  Second,  intituled  "An  Act  for  Prevention  of  Frauds  and 
Perjuries,"  as  relates  to  estates  pur  autre  vie;  and  also  an  Act  passed 
in  the  twenty-fifth  year  of  the  reign  of  King  George  the  Second,  intit- 
uled An  Act  for  avoiding  and  putting  an  End  to  certain  Doubts  and 
Questions  relating  to  the  Attestation  of  Wills  and  Codicils  concerning 
Real  Estates  in  that  Part  of  Great  Britain  called  England,  and  in  His 
Majesty's  Colonies  and  Plantations  in  America,  except  so  far  as  relates 
to  His  Majesty's  Colonies  and  Plantations  in  America;  and  also  an  Act 
passed  in  the  Parliament  of  Ireland  in  the  same  twenty-fifth  year  of 
the  reign  of  King  George  the  Second,  intituled  An  Act  for  the  avoid- 
ing and  putting  an  end  to  certain  Doubts  and  Questions  relating  to  the 
Attestations  of  Wills  and  Codicils  concerning  Real  Estates;   and  also 
an  Act  passed  in  the  fifty-fifth  year  of  the  reign  of  King  George  the 
Third,  intituled  An  Act  to  remove  certain  Difficulties  in  the  Disposi- 
tion of  Copyhold  Estates  by  Will,  shall  be  and  the  same  are  hereby  re- 
pealed, except  so  far  as  the  same  Acts  or  any  of  them  respectively  re- 


762  APPENDIX. 

late  to  any  wills  or  estates  pur  autre  vie,  to  which  this  Act  does  not 
extend. 

III.  And  be  it  further  enacted:  That  it  shall  be  lawful  for  every 
person  to  devise,  bequeath,  or  dispose  of,  by  his  will  executed  in  man- 
ner hereinafter  required,  all  real  estate  and  all  personal  estate  which 
he  shall  be  entitled  to,  either  at  law  or  in  equity,  at  the  time  of  his 
death,  and  which  if  not  so  devised,  bequeathed,  or  disposed  of  would 
devolve  upon  the  heir  at  law,  or  customary  heir  of  him,  or,  if  he  be- 
came entitled  by  descent,  of  his  ancestor,  or  upon  his  executor  or  ad- 
ministrator; and  that  the  power  hereby  given  shall  extend  to  all  real 
estate  of  the  nature  of  customary  freehold  or  tenant  right,  or  custom- 
ary or  copyhold,  notwithstanding  that  the  testator  may  not  have  sur- 
rendered the  same  to  the  use  of  his  will,  or  notwithstanding  that,  be- 
ing entitled  as  heir,  devisee,  or  otherwise  to  be  admitted  thereto,  he 
shall  not  have  been  admitted  thereto,  or  notwithstanding  that  the  same, 
in  consequence  of  the  want  of  a  custom  to  devise  or  surrender  to  the 
use  of  a  will  or  otherwise,  could  not  at  law  have  been  disposed  of  by 
will  if  this  Act  had  not  been  made,  or  notwithstanding  that  the  same, 
in  consequence  of  there  being  a  custom  that  a  will  or  a  surrender  to 
the  use  of  a  will  should  continue  in  force  for  a  limited  time  only,  or 
any  other  special  custom,  could  not  have  been  disposed  of  by  will  ac- 
cording to  the  power  contained  in  this  Act,  if  this  Act  had  not  been 
made;  and  also  to  estates  pur  autre  vie,  whether  there  shall  or  shall 
not  be  any  special  occupant  thereof,  and  whether  the  same  shall  be 
freehold,  customary  freehold,  tenant  right,  customary  or  copyhold,  or 
of  any  other  tenure,  and  whether  the  same  shall  be  a  corporeal  or  an 
incorporeal  hereditament;  and  also  to  all  contingent,  executory,  or 
other  future  interests  in  any  real  or  personal  estate,  whether  the 
testator  may  or  may  not  be  ascertained  as  the  person  or  one  of  the 
persons  in  whom  the  samt  respectively  may  become  vested,  and 
whether  he  may  be  entitled  thereto  under  the  instrument  by  which 
the  same  respectively  were  created  or  under  any  disposition  thereof 
by  deed  or  will ;  and  also  to  all  rights  of  entry  for  conditions  broken, 
and  other  rights  of  entry ;  and  also  to  such  of  the  same  estates,  inter- 
ests, and  rights  respectively,  and  other  real  and  personal  estate,  as  the 
testator  may  be  entitled  to  at  the  time  of  his  death,  notwithstanding 
that  he  may  become  entitled  to  the  same  subsequently  to  the  execution 
of  his  will. 

IV-V.  [Relating  to  customary  and  copyhold  estates.] 
VI.  And  be  it  further  enacted.  That  if  no  disposition  by  will  shall 
be  made  of  any  estate  pur  autre  vie  of  a  freehold  nature,  the  same 
shall  be  chargeable  in  the  hands  of  the  heir,  if  it  shall  come  to  hira  by 
reason  of  special  occupancy,  as  assets  by  descent,  as  in  the  case  of 
freehold  land  in  fee-simple;  and  in  case  there  shall  be  no  special  occu- 
pant of  any  estate  pur  autre  vie,  whether  freehold  or  customary  free- 
hold, tenant  right,  customary  or  copyhold,  or  of  any  other  tenure,  and 


ENGLISH    STATUTES.  763 

whether  a  corporeal  or  incorporeal  hereditament,  it  shall  go  to  the  ex- 
ecutor or  administrator  of  the  party  that  had  the  estate  thereof  by 
virtue  of  the  grant ;  and  if  the  same  shall  come  to  the  executor  or  ad- 
ministrator either  by  reason  of  a  special  occupancy  or  by  virtue  of  this 
Act,  it  shall  be  assets  in  his  hands,  and  shall  go  and  be  applied  and 
distributed  in  the  same  manner  as  the  personal  estate  of  the  testator 
or  intestate. 

VII.  And  be  it  further  enacted.  That  no  will  made  by  any  person 
under  the  age  of  twenty-one  years  shall  be  valid. 

VIII.  Provided  also,  and  be  it  further  enacted.  That  no  will  made 
by  any  married  woman  shall  be  valid,  except  such  a  will  as  might  have 
been  made  by  a  married  woman  before  the  passing  of  this  Act. 

IX.  And  be  it  further  enacted,  That  no  will  shall  be  valid  unless 
it  shall  be  in  writing  and  executed  in  manner  hereinafter  mentioned ; 
(that  is  to  say),  it  shall  be  signed  at  the  foot  or  end  thereof  by  the 
testator,  or  by  some  other  person  in  his  presence  and  by  his  direction; 
and  such  signature  shall  be  made  or  acknowledged  by  the  testator  in 
the  presence  of  two  or  more  witnesses  present  at  the  same  time,  and 
such  witnesses  shall  attest  and  shall  subscribe  the  will  in  the  presence 
of  the  testator,  but  no  form  of  attestation  shall  be  necessary. 

X.  And  be  it  further  enacted,  That  no  appointment  made  by  will, 
in  exercise  of  any  power,  shall  be  valid,  unless  the  same  be  executed 
in  manner  hereinbefore  required;  and  every  will  executed  in  manner 
hereinbefore  required  shall,  so  far  as  respects  the  execution  and  attes- 
tation thereof,  be  a  valid  execution  of  a  power- of  appointment  by  will, 
notwithstanding  it  shall  have  been  expressly  required  that  ^  will  made 
in  exercise  of  such  power  should  be  executed  with  some  additional  or 
other  form  of  execution  or  solemnity. 

XL  Provided  always,  and  be  it  further  enacted,  That  any  soldier 
being  in  actual  military  service,  or  any  mariner  or  seaman  being  at 
sea,  may  dispose  of  his  personal  estate  as  he  might  have  done  before 
the  making  of  this  Act. 

XII.  And  be  it  further  enacted.  That  this  Act  shall  not  prejudice  or 
affect  any  of  the  provisions  contained  in  an  Act  passed  in  the  eleventh 
year  of  the  reign  of  His  Majesty  King  George  the  Fourth  and  the 
first  year  of  the  reign  of  His  late  Majesty  King  William  the  Fourth, 
intituled  An  Act  to  amend  and  consolidate  the  Laws  relating  to  the. 
Pay  of  the  Royal  Navy,  respecting  the  wills  of  petty  officers  and  sea- 
men in  the  royal  navy,  and  non-commissioned  officers  of  marines,  and 
marines,  so  far  as  relates  to  their  wages,  pay,  prize  money,  bounty 
money,  and  allowances,  or  other  monies  payable  in  respect  of  service 
in  Her  Majestv's  navy. 

XIII.  And  be  it  further  enacted,  That  every  will  executed  in  man- 
ner hereinbefore  required  shall  be  valid  without  any  other  publication 
thereof. 

XIV.  And  be  it  further  enacted,  That  if  any  person  who  shall  at- 
test the  execution  of  a  v/ill  shall  at  the  time  of  the  execution  thereof. 


764  APPENDIX. 

or  at  any  time  afterwards,  be  incompetent  to  be  admitted  a  witness  to 
prove  the  execution  thereof,  such  will  shall  not  on  that  account  be  in- 
valid. 

XV.  And  be  it  further  enacted,  That  if  any  person  shall  attest  the 
execution  of  any  will  to  whom  or  to  whose  wife  or  husband  any  bene- 
ficial devise,  legacy,  estate,  interest,  gift,  or  appointment,  of  or  affect- 
ing any  real  or  personal  estate  (other  than  and  except  charges  and 
directions  for  the  payment  of  any  debt  or  debts),  shall  be  thereby 
given  or  made,  such  devise,  legacy,  estate,  interest,  gift,  or  appoint- 
ment>  shall,  so  far  only  as  concerns  such  person  attesting  the  execution 
of  such  will,  or  the  wife  or  husband  of  such  person,  or  any  person 
claiming  under  such  person  or  wife  or  husband,  be  utterly  null  and 
void,  and  such  person  so  attesting  shall  be  admitted  as  a  witness  to 
prove  the  execution  of  such  will,  or  to  prove  the  validity  or  invalidity 
thereof,  notwithstanding  such  devise,  legacy,  estate,  interest,  gift,  or 
appointment  mentioned  in  such  will. 

XVI.  And  be  it  further  enacted.  That  in  case  by  any  will  any  real 
or  personal  estate  shall  be  charged  with  any  debt  or  debts,  and  any 
creditor,  or  the  wife  or  husband  of  any  creditor,  whose  debt  is  so 
charged,  shall  attest  the  execution  of  such  will,  such  creditor  not- 
withstanding such  charge  shall  be  admitted  a  witness  to  prove  the  ex- 
ecution of  such  will,  or  to  prove  the  validity  or  invalidity  thereof. 

XVII.  And  be  it  further  enacted.  That  no  person  shall,  on  account 
of  his  being  an  executor  of  a  will,  be  incompetent  to  be  admitted  a 
witness  to  prove  the  execution  of  such  will,  or  a  witness  to  prove  the 
validity  or  invalidity  thereof. 

XVITI.  And  be  it  further  enacted.  That  every  will  made  by  a  man 
or  woman  shall  be  revoked  by  his  or  her  marriage  (except  a  will  made 
in  exercise  of  a  power  of  appointment,  when  the  real  or  personal  es- 
tate thereby  appointed  would  not  in  default  of  such  appointment  pass 
to  his  or  her  heir,  customary  heir,  executor,  or  administrator,  or  the 
person  entitled  as  his  or  her  next  of  kin,  under  the  Statute  of  Dis- 
tribution). 

XIX.  And  be  it  further  enacted.  That  no  will  shall  be  revoked  by 
any  presumption  of  an  intention  on  the  ground  of  an  alteration  in  cir- 
cumstances. 

XX.  And  be  it  further  enacted.  That  no  will  or  codicil,  or  any  part 
thereof,  shall  be  revoked  otherwise  than  as  aforesaid,  or  by  another 
will  or  codicil  executed  in  manner  hereinbefore  required,  or  by  some 
writing  declaring  an  intention  to  revoke  the  same,  and  executed  in 
the  manner  in  which  a  will  is  hereinbefore  required  to  be  executed,  or 
by  the  burning,  tearing,  or  otherwise  destroying  the  same  by  the  tes- 
tator, or  by  some  person  in  his  presence  and  by  his  direction,  with  the 
intention  of  revoking  the  same. 

XXI.  And  be  it  further  enacted,  That  no  obliteration,  interlinea- 
tion, or  other  alteration  made  in  any  will  after  the  execution  thereof 
shall  be  valid  or  have  any  effect,  except  so  far  as  the  words  or  effect  of 


ENGLISH    STATUTES.  765 

the  will  before  such  alteration  shall  not  be  apparent,  unless  such  al- 
teration shall  be  executed  in  like  manner  as  hereinbefore  is  required 
for  the  execution  of  the  will ;  but  the  will,  with  such  alteration  as  part 
thereof,  shall  be  deemed  to  be  duly  executed  if  the  signature  of  the 
testator  and  the  subscription  of  the  witnesses  be  made  in  the  margin 
or  on  some  other  part  of  the  will  opposite  or  near  to  such  alteration, 
or  at  the  foot  or  end  of  or  opposite  to  a  memorandum  referring  to 
such  alteration,  and  written  at  the  end  or  some  other  part  of  the  will. 

XXII.  And  be  it  further  enacted.  That  no  will  or  codicil,  or  any 
part  thereof,  which  shall  be  in  any  manner  revoked,  shall  be  revived 
otherwise  than  by  the  re-execution  thereof,  or  by  a  codicil  executed  in 
manner  hereinbefore  required,  and  showing  an  intention  to  revive  the 
same ;  and  when  any  will  or  codicil  which  shall  be  partly  revoked,  and 
afterwards  wholly  revoked,  shall  be  revived,  such  revival  shall  not  ex- 
tend to  so  much  thereof  as  shall  have  been  revoked  before  the  rev- 
ocation of  the  whole  thereof,  unless  an  intention  to  the  contrary  shall 
be  shown. 

XXIII.  And  be  it  further  enacted,  That  no  conveyance  or  other  act 
made  or  done  subsequently  to  the  execution  of  a  will  of  or  relating  to 
any  real  or  personal  estate  therein  comprised,  except  an  act  by  which 
such  will  shall  be  revoked  as  aforesaid,  shall  prevent  the  operation  of 
the  will  with  respect  to  such  estate  or  interest  in  such  real  or  personal 
estate  as  the  testator  shall  have  power  to  dispose  of  by  will  at  the  time 
of  his  death. 

XXIV.  And  be  it  further  enacted,  That  every  will  shall  be  con- 
strued, with  reference  to  the  real  estate  and  personal  estate  comprised 
in  it,  to  speak  and  take  effect  as  if  it  had  been  executed  immediately 
before  the  death  of  the  testator,  unless  a  contrary  intention  shall  ap- 
pear by  the  will. 

XXV.  And  be  it  further  enacted.  That,  unless  a  contrary  intention 
shall  appear  by  the  will,  such  real  estate  or  interest  therein  as  shall 
be  comprised  or  intended  to  be  comprised  in  any  devise  in  such  will 
contained,  which  shall  fail  or  be  void  by  reason  of  the  death  of  the 
devisee  in  the  lifetime  of  the  testator,  or  by  reason  of  such  devise  being 
contrary  to  law,  or  otherwise  incapable  of  taking  effect,  shall  be  in- 
cluded in  the  residuary  devise  (if  any)  contained  in  such  will. 

XXVI.  And  be  it  further  enacted,  That  a  devise  of  the  land  of 
the  testator,  or  of  the  land  of  the  testator  in  any  place  or  in  the  occu- 
pation of  any  person  mentioned  in  his  will,  or  otherwise  described  in 
a  general  manner,  and  any  other  general  devise  which  would  describe 
a  customary,  copyhold,  or  leasehold  estate  if  the  testator  had  no  free- 
hold estate  which  could  be  described  by  it,  shall  be  construed  to  in- 
clude the  customary,  copyhold,  and  leasehold  estates  of  the  testator, 
or  his  customary,  copyhold,  and  leasehold  estates,  or  any  of  them,  to 
which  such  description  shall  extend,  as  the  case  may  be,  as  well  as 
freehold  estates,  unless  a  contrary  intention  shall  appear  by  the  will. 


7G6  APPENDIX. 

XXVII.  And  be  it  further  enacted,  That  a  general  devise  of  the 
real  estate  of  the  testator,  or  of  the  real  estate  of  the  testator  in  any 
place  or  in  the  occupation  of  any  person  mentioned  in  his  wilJ,  or 
otherwise  described  in  a  general  manner,  shall  be  construed,  to  in- 
clude any  real  estate,  or  any  real  estate  to  which  such  description  shall 
extend  (as  the  case  may  be),  which  he  may  have  power  to  appoint  in 
any  manner  he  may  think  proper,  and  shall  operate  as  an  execution 
of  such  power,  unless  a  contrary  intention  shall  appear  by  the  will ; 
and  in  like  manner  a  bequest  of  the  personal  estate  of  the  testator,  or 
any  bequest  of  personal  property  described  in  a  general  manner,  shall 
be  construed  to  include  any  personal  estate,  or  any  personal  estate  to 
which  such  description  shall  extend  (as  the  case  may  be),  which  he 
may  have  power  to  appoint  in  any  manner  he  may  think  proper,  and 
shall  operate  as  an  execution  of  such  power,  unless  a  contrary  inten- 
tion shall  appear  by  the  will. 

XXVIII.  And  be  it  further  enacted,  That  where  any  real  estate 
shall  be  devised  to  any  person  without  any  words  of  limitation,  such 
devise  shall  be  construed  to  pass  the  fee  simple,  or  other  the  whole 
estate  or  interest  which  the  testator  had  power  to  dispose  of  by  will 
in  such  real  estate,  unless  a  contrary  intention  shall  appear  by  the  will. 

XXIX.  And  be  it  further  enacted,  That  in  any  devise  or  bequest 
of  real  or  personal  estate  the  words  "die  without  issue,"  or  "die  with- 
out leaving  issue,"  or  "have  no  issue,"  or  any  other  words  which  may 
import  either  a  want  or  failure  of  issue  of  any  person  in  his  lifetime, 
or  at  the  time  of  his  death,  or  an  indefinite  failure  of  his  issue,  shall  be 
construed  to  mean  a  want  or  failure  of  issue  in  the  lifetime  or  at  the 
time  of  the  death  of  such  person,  and  not  an  indefinite  failure  of  his 
issue,  unless  a  contrary  intention  shall  appear  by  the  will,  by  reason  of 
such  person  having  a  prior  estate  tail,  or  of  a  preceding  gift,  being, 
without  any  implication  arising  from  such  words,  a  limitation  of  an 
estate  tail  to  such  person  or  issue  or  otherwise ;  Provided,  that  this  Act 
shall  not  extend  to  cases  where  such  words  as  aforesaid  import  if  no 
issue  described  in  a  preceding  gift  shall  be  born,  or  if  there  shall  be 
no  issue  who  shall  live  to  attain  the  age  or  otherwise  answer  the  de- 
scription required  for  obtaining  a  vested  estate  by  a  preceding  gift  to 
such  issue. 

XXX.  And  be  it  further  enacted,  That  where  any  real  estate  (other 
than  or  not  being  a  presentation  to  a  church)  shall  be  devised  to  any 
trustee  or  executor,  such  devise  shall  be  construed  to  pass  the  fee 
simple  or  other  the  whole  estate  or  interest  which  the  testator  had 
power  to  dispose  of  by  will  in  such  real  estate,  unless  a  definite  term 
of  years,  absolute  or  determinable,  or  an  estate  of  freehold,  shall 
thereby  be  given  to  him  expressly  or  by  implication. 

XXXI.  And  be  it  further  enacted,  That  where  any  real  estate  shall 
be  devised  to  a  trustee,  without  any  express  limitation  of  the  estate 
to  be  taken  by  such  trust^ee,  and  the  beneficial  interest  in  such  real 


ENGLISH    STATUTES.  767 

estate,  or  in  the  surplus  rents  and  profits  thereof,  shall  not  be  given 
to  any  person  for  life,  or  such  beneficial  interest  shall  be  given 
to  any  person  for  life,  but  the  purposes  of  the  trust  may  continue  be- 
yond the  life  of  such  person,  such  devise  shall  be  construed  to  vest  in 
such  trustee  the  fee  simple,  or  other  the  whole  legal  estate  which 
the  testator  had  power  to  dispose  of  by  will  in  such  real  estate,  and 
not  an  estate  determinable  when  the  purposes  of  the  trust  shall  be 
satisfied. 

XXXII.  And  be  it  further  enacted,  That  where  any  person  to 
whom  any  real  estate  shall  be  devised  for  an  estate  tail  or  an  estate  in 
quasi  entail  shall  die  in  the  lifetime  of  the  testator  leaving  issue  who 
would  be  inheritable  under  such  entail,  and  any  such  issue  shall  be 
living  at  the  time  of  the  death  of  the  testator,  such  devise  shall  not 
lapse,  but  shall  take  effect  as  if  the  death  of  such  person  had  hap- 
pened immediately  after  the  death  of  the  testator,  unless  a  contrary  in- 
tention shall  appear  by  the  will. 

XXXIII.  And  be  it  further  enacted.  That  where  any  person  being 
a  child  or  other  issue  of  the  testator  to  whom  any  real  or  personal  es-. 
tate  shall  be  devised  or  bequeathed  for  any  estate  or  interest  not  deter- 
minable at  or  before  the  death  of  such  person  shall  die  in  the  lifetime 
of  the  testator  leaving  issue,  and  any  such  issue  of  such  person  shall 
be  living  at  the  time  of  the  death  of  the  testator,  such  devise  or  be- 
quest shall  not  lapse,  but  shall  take  effect  as  if  the  death  of  such  per- 
son had  happened  immediately  after  the  death  of  the  testator,  unless 
a  contrary  intention  shall  appear  by  the  will. 

XXXIV.  And  be  it  further  enacted,  That  this  Act  shall  not  extend 
to  any  will  made  before  the  first  day  of  January  one  thousand  eight 
hundred  and  thirty-eight,  and  that  every  will  re-executed  or  repub- 
hshed,  or  revived  by  any  codicil,  shall  for  the  purposes  of  this  Act  be 
deemed  to  have  been  made  at  the  time  at  which  the  same  shall  be  so 
re-executed,  republished,  or  revived ;  and  that  this  Act  shall  not  extend 
to  any  estate  pur  autre  vie  of  any  person  who  shall  die  before  the  first 
day  of  January  one  thousand  eight  hundred  and  thirty-eight. 

XXXV.  And  be  it  further  enacted,  That  this  Act  shall  not  extend  to 
Scotland. 

St.  15  &  16  Vict.  c.  24.— See  ante,  p.  114. 


INDEX 


[the  figures  refer  to  pages] 


ABATEMENT  OF  LEGACIES  AND  DEVISES.  467,  468,  657-682. 

blending  of  realty  and  personalty  in  residue,  673-676,  677,  note,  678-680. 

demonstrative  legacies,  659-664. 

general  legacies  and  devises,  660,  note. 

lands  descended,  467,  468.  664-669. 

legacies  in  lieu  of  dower  or  for  value,  680-682,  and  note. 

order  of  abatement.  661,  note,  662,  note. 

personalty  and  realty  blended  in  residue,  673-676.  677,  note,  678-680. 

realty  and  personalty  blended  in  residue,  673-676,  677,  note,  678-680. 

realty  charged  with  debts,  676,  677. 

realty  charged  with  debts,  676,  677. 

residuary  devises,  661,  note,  664-680. 

residuary  legacies  and  devises,  659,  660,  and  note. 

testator's  intentions  prevail,  467,  468,  676,  677. 

ACKNOWLEDGMENT, 

see  Execution  of  Written  Wills. 

ADEINIPTION.  728-734,  746.  747. 

distinguished  from  revocation.  293.  note,  731,  note, 
distinguished  from  satisfaction,  722,  note. 

ADMINISTRATION, 

see  Probate  and  Administration. 

ADMINISTRATORS  AND  EXECUTORS, 

see  Probate  and  Administration, 
appointment  and  removal  of,  521-532. 

coadministrators  and  coexecutors,  586,  587,  and  note.  588,  note, 
disqualification,  527-530. 
executors  de  son  tort,  577,  note,  620-632. 
insanity  of  executor,  529,  530. 

liability  of  one  personal  representative  for  the  acts  of  another   588   note 
power  of  alienation,  573-590.  ' 

purchaser  from,  573-588,  and  note,  588-590. 
removal  of  administrator  or  executor,  529,  note, 
renunciation  of  executor,  533,  note, 
resignation  of  executor,  530-532,  and  note, 
right  to  appointment  as  administrator,  521-527. 

by  adopted  child,  524,  note. 

by  illegitimate  children  and  their  descendants,  521-524. 

by  husband  and  wife,  524-527. 
sale  of  estate  property  on  execution  against  administrator  individually,. 

«.>8o— 586. 
title  of  executors  and  administrators,  545-568. 
waiver  of  the  statute  of  limitations  by,  604,  note. 

ADOPTED  CHILDREN, 

see  Administrators  and  Executors;    Descent. 

ADVANCEMENTS,  722-728,  747,  748. 

bringing  into  hotchpot,  722-728,  747,  748. 
erroneous  recital  of  in  will,  78,  79,  222-225. 
Cost.  Wills — 49  (769) 


770  INDEX. 

[The  figures  refer  to  pages.] 

ADVANCEMENTS — (Continued, 
hotchpot,  722-728,  747,  748. 
incorporation  by  reference,  222-225. 
infants  and  hotchpot,  722-725. 
In  relation  to  lapsed  legacy,  747,  748. 
partial  intestacy  as  affecting,  747,  748. 
pretermitted  heirs,  224,  note, 
real  estate  advanced  charged  on  distribution  of  personalty,  726-728. 

ALIENS, 

see  Descent, 
testamentary  capacity  of,  10. 

ALIENATION  BY  EXECUTORS  AND  ADMINISTRATORS,  583-590. 

ANCILLARY  ADMINISTRATION, 
rights  of  creditors  on,  611-613.  ^ 

ANIMUS  ATTESTANDI,  184,  185.  ^ 

ANIMUS  NUNCUPANDI,  102,  note. 

ANIMUS  REVOCANDI,  229-231. 

ANIMUS  TESTANDI,  165,  166. 

APPOINTMENT  OF  EXECUTORS  AND  ADMINISTRATORS, 

see  Administrators  and  Executors. 

ASSETS  TO  GIVE  JURISDICTION, 
see  Probate  and  Administration. 

ATTESTING  WITNESSES, 
see  Witnesses. 

ATTESTATION, 

see  Execution  of  Written  Wills. 

ATTESTATION  CLAUSE,  145,  146,  148,  149,  185,  186,  and  note. 

ATTORNEY, 

see  Witnesses. 

BASTARD, 

see  Descent 

BENEFICIARY, 
see  Witnesses. 

BLIND  TESTATOR,  159,  160. 
BURI>EN  OF  PROOF, 

see  Slental  Capacity ;   Undue  Influence. 

BURNING, 

see  Revocation  of  Wills. 

CANCELLATION, 

see  Revocation  of  Wills. 

CIVIL  DEATH,  10-12,  444-451,  494,  495. 

CLAIMS  AGAINST  DECEDENT'S  ESTATE, 

see  Probate  and  Administration.  , 

CODICIL, 

see  Incorporation  by  Reference;   Republication  of  Wills ;    Revival;   Revo- 
cation of  Wills. 

COMMON  DIS.\STER.  DEATH  IN,  396,  397. 

COMMUNITY  PROPERTY. 

adminlstrntion  of,  490.  note. 

COMMON  FORM. 

probate  In,  507,  note. 


INDEX.  771 

[The  figures  refer  to  pages.] 


COMPETENCY  OF  WITNESSES, 

see  Witnesses. 

CONDITIONAL,  REVOCATION, 
see  Revocation  of  Wills. 

CONDITIONAL  WILLS, 
see  Wills. 

CONSTRUCTION  OF  WILLS, 
by  court  of  probate,  520,  521. 
conditional  will,  104-107. 
mistake,  69-77,  80-82. 

CONTRACTS  TO  BEQUEATH  OR  TO  DEVISE, 

distinguished  from  wills,  90-92. 

remedies  on,  91,  note. 

statute  of  limitations  runs  when,  91,  note. 

CONVERSION,  EQUITABLE, 
see  Descent 

CONVICTION  OF  CRIME, 

as  affecting  descent,  426-451. 

as  affecting  testamentary  capacity,  10-12. 

COVERTURE, 

as  affecting  testamentary  capacity,  9. 
wife  as  "heir,"  405-407. 

CREDIBILITY, 
see  Witnesses. 


DEEDS, 

distinguished  from  wills,  83-86. 

evidence  that  deed  intended  as  will,  86,  note. 

DEFINITIONS, 

see  Words  and  Phrases. 

DEMONSTRATIVE  LEGACIES, 
see  Abatement. 

DEPENDENT  RELATIVE  REVOCATION, 
see  Revocation  of  Wills. 

DESCENT, 

adopted  children  as  ancestors  and  heirs,  419-422. 

after-born  heirs,  474-485. 

aliens  as  ancestors  and  heirs,  452. 

bastards, 

as  ancestors  and  heirs,  408-411,  and  note,  423-426. 

how  legitimated,  423-426. 
breaking  descent, 

by  deed,  461-466. 

by  devise,  466-473. 
canons  of  descent,  386-388. 
children, 

illegitimate,  408-411,  and  note,  423^26. 

pretermitted  heirs,  408-419. 
civil  death,  444-451, 
consanguinity  and  descent,  384-386. 
debts  of  ancestor,  liability  of  heirs  for,  453-460. 
distributions  and  descent,  391-395. 
equitable  and  legal  interests,  descent  of,  39T-i04. 

equitable  conversion,  397-400,  and  note. 

merger  of  legal  and  equitable  interests,  401-404. 


772  INDEX. 

[The  figures  refer  to  pages.] 

DESCENT— Continued, 

expectancies,  transfer  of,  486-493. 

conveyance  to  third  persons,  488-493. 

release  to  ancestor,  486-488. 
illegitimate  and  legitimated  children  as  ancestors  and  heirs,  408-411,  and 

note,  423-426. 
liability  of  heirs  for  debts  of  ancestor,  453-460. 
murderer  of  ancestor  as  heir,  426-443. 
partial  intestacy.  396,  397. 
persons  civilly  dead  as  heirs.  444r4:51. 
posthumous  children,  471-480. 
pretermitted  heirs,  408-419. 

evidence  of  intention  to  exclude,  224  note,  411-419. 

illegitimate  children  as,  408-411. 
seisin  and  descent,  388-391. 
shifting  descents, 

posthumous  children.  474-480. 

other  after-born  heirs,  480-485. 
transfer  of  expectancies.  486-^93. 
widow  as  "heir,"  405-407. 

DESTROYING, 
see  Revocation. 

DEVISES, 

see  Abatement ;  Residuary  Devises  and  Bequests. 

DIVIDENDS, 
see  Legacies. 

DIVORCE, 

see  Revocation  of  Wills. 

DOMICILE, 

effect  of  adjudication  of,  510-512,  and  note. 

DUPLICATE  WILL, 

revocation  of,  260,  note, 

witnesses  signing  different  copies,  169,  note. 


EQUITABLE  CONVERSION, 

see  Descent. 
EQUITABLE  INTEREST, 

see  Descent. 

ERROR, 

see  Mistake. 

EXECUTION  OF  WRITTEN  WILLS, 

see  Incorporation  by  Reference ;    Witnesses, 
acknowledgment  of  signature, 

by  testator,  133-143,  165,  166. 

by  witness,  143-145,  150,  note,  162-164. 

request  to  witness  to  sign  as,  133-141. 
acknowledgment  of  will  for  attestation  purposes,  133-141,  145,  146. 
attestation, 

evidence  of,  145,  146,  148,  149. 

place  of,  186,  note, 
attestation  clause,  145,  146,  148,  149,  185,  186,  and  note, 
form  of  signature, 

by  testator,  117,  118. 

by  witness,  174-185. 
knowledge  by  witness  that  testator  has  no  animus  testandi,  165,  160. 
knowledge  of  Instrument's  contents, 

by  testator,  114,  115,  and  note. 

by  witness,  130,  note,  133,  143. 


INDEX.  •''3 

[The  figures  refer  to  pages.] 

EXECUTION  OF  WRITTEN  WILLS— ^Continued, 
order  of  signing,  143-145,  166-174. 
place  of  signature. 

by  testator,  120-133. 

by  witness,  186,  note, 
presence,  what  is  attestation  in  the,  147-166. 

mutual  presence  of  witnesses,  162-164,  and  note. 

what  is  presence,  147-162, 
publication  of  will, 

what  sufficient,  133-145. 

when  required,  133-145. 
request  that  witnesses  sign, 

when  sufficient,  133-141,  145,  146. 
signature  of  testator, 

acknowledgment,  133-143,  165,  166. 

by  another,  119,  120,  note. 

form  of,  117,  118. 

order  of  signing,  143-145,  166-174. 

place  of,  117,  118,  and  note,  120-133. 

sealing  as,  117. 

when  not  required  prior  to  Wills  Act,  116. 
signature  of  witnesses, 

acknowledgment  of,  143-145,  150,  note,  162-164. 

by  another,  180-184. 

form  of,  174-185. 

order  of  signing,  143-145,  166-174. 

place  of,  186,  note.  .^  __  ^,.^ 

presence  of  testator  and,  when  required,  of  other  witnesses,  147-Ibb. 
testamentary  intent,  165,  166. 

EXECUTORS, 

see  Administrators  and  Executors. 

EXECUTORS  DE  SON  TORT,  577,  note,  620-632. 

EXONERATION  OF  MORTGAGED  PROPERTY,  702-710. 

as  between  devisee  and  specific  legatee,  702. 

Locke  King's  Acts,  702,  note. 

where  mortgage  assumed  by  deceased  on  purchase,  703-708. 

where  mortgage  put  on  after  execution  of  will  devising  property,  709,  710. 

EXPECTANCIES, 
see  Descent. 

FOREIGN  PROBATE, 

effect  of,  510-^12,  and  note. 

FRAUD, 

alteration  of  will,  513,  514. 

evidence  of,  36,  note. 

false  character  of  legatee,  31-33,  and  note,  306,  note. 

jurisdiction  to  correct  fraud,  426-443,  513,  514,  534,  535,  538-541. 

preventing  revocation  of  will  fraudulently,  245,  note. 

substitution  of  drafts  of  will,  34. 

undue  influence  distinguished  from,  31,  note. 

GIFTS  CAUSA  MORTIS, 

distinguished  from  wills,  87-89. 
nature  of  condition  attached,  90,  note. 

HISTORY  OF  WILLS  AND  TESTAMENTS,  3-8. 

HOLOGRAPHIC  WILLS, 
see  Wills. 


774  INDEX. 

[The  figures  refer  to  pages.] 

HUSBAND  AND  WIFE,  ^  ^      w^^^noti^r,  nf 

see  Administrators  and  Executors;  Coverture;    Descent;    Revocation  of 

Wills;   Wills;   Witnesses. 

ILLEGITIMATE  CHILDREN, 

see  Descent. 

IMPLIED  REVOCATION, 

see  Revocation  of  Wills. 
INCORPORATION  BY  REFERENCE,  202-227,  339,  342-351, 
by  codicil,  208-210,  215-218,  342-351. 
by  holographic  will  or  codicil.  215-218,  and  note, 
in  general,  202-218,  226,  227,  339. 
New  York  rule,  215,  note,  349-351. 
secret  trusts,  218-221,  and  note. 

INFANCY, 

as  affecting  testamentary  capacity,  9. 

INTEREST  ON  LEGACIES, 

see  Probate  and  Administration. 

INTERESTS  BELONGING  TO  EXECUTORS  AND  ADMINISTRATORS, 
see  Probate  and  Administration. 

INTESTACY, 

see  Descent ;    Partial  Intestacy ;   Probate  and  Administration. 

JOINT  WILLS, 
see  Wills. 

JURISDICTION  TO  ISSUE  LETTERS, 
see   Probate  and  Administration. 

LAPSED  GIFTS, 

see  Residuary  Devises  and  Bequests. 

LEGACIES, 

see  Abatement ;  Probate  and  Administration ;  Residuary  Devises  and  Be- 
quests. 

LEGITIMATION, 
see  Descent. 

LOST  WILL, 

presumption  as  to  revocation,  307. 

MARRIED  WOjMEN, 

see  Husband  and  Wife. 

MENTAL  CAPACITY,  13-30. 

belief  in  Spiritualism,  23-30,  and  note. 

burden  of  proof,  20-22. 

effect  of  adjudication  as  to  guardianship,  19,  20,  note. 

insane  delusions,  2-1-27. 

relation  to  undue  influence,  47,  48. 

test  of,  13-20,  23. 

MINOR, 

see  Infancy. 

MISTAKE,  50-82. 

see  Revocation  of  Wills, 
construction,  G9-77,  80-82. 
dependent  relative  revocation,  308-337. 
erroneous  recital  of  advancements,  78,  79,  222-225. 
erroneous  recital  of  number  of  class  of  persons,  80-82. 
evidence  of,  50,  51,  116,  334,  335. 


INDEX.  775 

[The  figures  refer  to  page*.] 

MI  STAK  B— Continued, 

ignorance  of  scrivener,  51-55,  and  note. 
omissions,  56-64,  116. 
striking  out  words,  58-77. 
wrong  paper  executed,  77,  78. 

MUTILATION,- 

see  Revocation  of  Wills. 

MUITFAL  WILLS, 

see  Wills. 

NAME, 

see  Execution  of  Written  Willa 

NUNCUPATIVE  WILLS.  * 

see  Wills. 

OBLITERATION, 

see  Revocation  of  Wills. 

OLOGRAPHIC  WILLS, 
see  Wills 

PARTIAL  INTESTACY, 

see  Advancements, 
descent,  396,  397. 
lapsed  residue,  720,  721. 

PENCIL, 

cancellation  with.  90.  note,  253,  note. 
will  written  with,  93,  94. 

PORTIONS, 

double  not  favored,  742,  note. 

POSTHUMOUS  CHILD, 

see  Descent. 

PRETERMITTED  HEIRS, 
see  Descent. 

PROBATE  AND  ADMINISTRATION, 

see  Abatement  of  Legacies  and  Devises ;   Ademption ;   Administrators 
and  Executors ;    Advancements ;    Exoneration  of  Mortgaged  Prop- 
erty ;   Residuary  Devises  and  Bequests ;    Satisfaction, 
claims  against  decedent's  estate, 
kinds  of  claims, 

action  for  wrongful  death,  595-599. 
breach  of  contract  for  skillful  treatment,  594,   595. 
breach  of  promise  of  marriage,  592-594. 
contracts  of  executors  and  administrators,  600-604. 
covenant  for  ground  rent,  599,  600. 
quasi  contracts,  592,  note, 
torts  of  deceased,  591.  592,  and  note, 
torts  of  executors,  602,  note, 
presentation  of  claims, 

action  as  presentation,  608.  and  note. 

contingent  and  uncertain  claims,  607,  608,  610,  note.  692-697. 

effect  of  revocation  of  administration,  541-544,  and  note. 

effect  on  mortgage  and  deficiency  of  failure  to  present  claim,  607, 

608,  and  note, 
extent  of  claim  of  secured  creditor  having  insufficient  security, 

608,  note, 
notice  to  one  of  several  representatives,  605. 
same  person  executor  both  of  creditor  and  of  debtor,  609,  610. 
set-off  of  claim  not  presented,  606,  and  note. 

t 


776  INDEX. 

[The  figures  refer  to  pages.] 

PROBATE  AND  ADMINISTRATION— Continued, 
priority  between  claims,  611-613. 

at  common  law,  611. 

where  ancillary  administration,  611-613. 
priority  of  creditors  over  legatees  and  next  of  kin,  613-620. 

legatees  and  bond  creditors,  619,  620. 

retention  for  contingent  claims,  613-619. 
refunding  by  creditors,  632-636. 
debts  due  from  the  personal  representative  as  assets.  56S-572. 
interests  belonging  to  executors  and  to  administrators, 
kinds  of  interests,  545-562. 

action  for  damage  to  the  person,  560,  note. 

action  for  damages  done  to  the  personal  estate,  559.  .560,  and  note. 

action  for  damages  prior  to  wrongful  death,  549-552,  and  note. 

action  of  trespass  quare  clausum,  500-562. 

action  on  fire  insurance  policy,  552-557. 

action  to  recover  property  transferred  in  fraud  of  deceased's  cred- 
itors, 557-559. 

breach  of  promise  of  marriage,  545,  546,  and  note. 

covenant  not  to  injure  trees  excepted  from  demise,  547-549. 
power  of  alienation,  573-590. 
when  interest  vests, 

administrator, 

before  appointment,  565-568. 
relation  back,  565-568,  602,  603. 

executor, 

before  probate,  562-565. 
Jurisdiction  to  issue  letters,  493-506. 
absentees'  estate,  496,  note, 
civil  death,  493-496. 
community  property,  496,  note, 
court  having  jurisdiction,  498-504. 

effect  of  lapse  of  time  on  right  to  issue,  504-506,  and  note* 
Improperly  attested  will,  496,  497. 
living  person's  estate,  495,  note, 
kinds  of  probate  and  administration, 
common  form,  507,  note, 
solemn  form,  507,  note, 
legacies  and  devises, 

abatement  of,  657-682. 

see  Abatement  of  Legacies  and  Devises, 
dividends  on,  6547-056. 
Interest,  637-G53. 

annuity,  646,  648. 

definite  sum  to  one  for  life  and  then  over,  645-652. 

legacy  for  maintenance,  652,  653. 

pecuniary  legacy  where  no  time  for  payment  fixed,  637,  638. 

pecuniary  legacy  where  payment  to  be  "as  soon  as  convenient," 
638-640. 

rate  of  interest,  643,  644. 

residue  to  one  for  life  and  then  over,  647. 
refunding  by  legatees  and  distributees, 

dividends  on  stock  refunded,  699-702. 

interest  on  refund,  699. 

on  devastavit,  682,  6S3,  and  note. 

voluntary  payment  of  legacy  under  mistake  as  to  assets  and  li- 
abilities, 684-697. 
retainer, 

for  contingent  claims,  613-619. 

for  debts  barred  by  the  statute  of  limitations,  697,  698. 


INDEX.  777 

[The  figures  refer  to  pages.] 

PROBATE  AND  ADMINISTRATION— Continued, 

necessity  and  effect  of  probate  and  administration,  426-443,  507-521. 

administration  by  wrong  court.  49S-502,  and  note. 

administration  of  estate  of  living  person,  495.  note, 

construction  of  will  on  probate.  520.  521. 

effect  of  full  faith  and  credit  clause  of  federal  Constitution  as  to  sis- 
ter state  probate,  512.  note. 

ejectment  begun  by  devisee  before  probate.  507-510. 

next  of  kin  and  distributees  suing  for  benefit  of  estate,  514—519. 

probate  of  foreign  will,  510-513. 

probate  of  fraudulently  altered  will.  513,  514. 

probate  of  improperly  attested   will.  496.  497. 
revocation  of  probate  and  of  administration,  533-544. 

effect  on  bona  fide  purchasers,  533,  538-541,  544.  note. 

effect  on  payment  made  before  revocation,  534.  535. 

effect  on  presentation  of  claims.  541-544. 

forged  will,  534.  .535. 

subsequent  probate  without  revocation   of  administration   by   direct 
proceeding,  536,  537. 
survival  of  actions. 

see  interests  belonging  to  executors  and  administrators,  under  this 
subject, 
title  of  executors  and  of  administrators. 

see  interests  belonging  to  executors  and  administrators,  under  this 
subject, 
title  of  personalty  of  intestate  pending  administration,  516,  note. 

PUBLICATION. 

see  Execution  of  Wills. 

QUALIFIED  HEIR,  477-i80. 

REASONABLE  PARTS, 
doctrine  of,  6. 

RECEIVERS  FOR  DECEDENTS'  PROPEmTT,  f516,  note,  529,  note. 

REFUNDING, 

see  Probate  and  Administration. 
by  creditors,  632-636. 
by  legatees  and  distributees,  682-697,  699-702. 

RENUNCIATION, 

of  devise.  718.  note. 

of  executorship,  533,  note. 

REPUBLICATION  OF  WILLS,  339-367. 
after-acquired  realty.  340,  341. 
curative  effect  of  codicil,  362,  note. 

effect  upon  good  gifts  in  will  that  would  be  bad  if  in  codicil,  363-367. 
effect  upon  intermediate  codicils,  352-301. 
effect  upon  satisfied  or  revoked  legacies,  361.  362. 
holographic  wills,  351,  note, 
incorporation  by  reference  in  codicil.  208-210.  215-218,  342-351. 

RESIDUARY  DEVISES  AND  BEQUESTS,  714-721. 

see  Abatement  of  Legacies  and  Devises ;    Satisfaction, 
blending  realty  and  personalty, 

see  Abatement  of  Legacies  and  Devises, 
lapsed  devises,  717,  718. 
lapsed  legacies,  711-714,  720,  721. 
residue  of  residue,  720,  721,  and  note, 
void  bequest.  715-717. 
void  devise.  714,  715. 

RESIDUARY  LEGATEE  EXECUTOR,  520,  note. 


778  INDEX. 

[The  figures  refer  to  pages.] 

RETAINER, 

see  Satisfaction, 
for  contingent  claims,  613-619. 
for  debts  barred  by  statute  of  limitations,  697,  698. 

REVIVAL  OF  WILLS,  368-383.  ,     ,     *.        ^  a    oai 

effect  of  destruction  of  earlier  revoked  will  before  revival  attempted,  dsi, 

effect  of  mistaken  notion  that  revocation  of  reviving  will  leaves  revived 

will  operative,  382,  383.  ,  .  v  •,,    or-o  o-o   oqo 

effect  of  revocation  of  will  expressly  revoking  earlier  will.  ^»»-^'-''  ^^^* 
effect  of  revocation  of  will  impliedly  revoking  earlier  will,  380,  381. 
holographic  wills,  351,  note.  , 

variance  between  rules  of  common-law  and  ecclesiastical  courts,  dbS,  dOJ. 

REVOCATION  OF  PROBATE  AND  OF  ADMINISTRATION, 

see  Probate  and  Administration. 

REVOCATION  OF  WILLS,  . 

by  burning,  tearing,  canceling,  obliterating,  mutilating,  or  otherwise  de- 
stroying, 241-271. 

burning,  242-24.5.  and  note. 

cancellation,  249-253,  254,  note,  262-206. 

destruction,  248,  note,  251,  252. 

mutilation,  254.  note. 

obliteration,  253,  note,  256,  257,  note,  262-266. 

tearing, 

cutting,  248. 
scratching,  248. 
uncompleted  act,  246-248. 

union  of  act  and  intent,  241-248. 
by  circumstances, 

adoption  of  child,  298-301. 

birth  of  children,  272-274,  283-290.  and  note. 

conveyance,  290-293,  and  note,  296. 

death  of  beneficiaries,  295,  note. 

divorce,  with  adjustment  of  property  rights,  301-306,  and  note. 

increase  in  value  of  estate,  294,  296,  297. 

insanity  of  testator,  294. 

loss  of  estate,  295. 

marriage  and  birth  of  children,  272-274,  and  note. 

marriage  as  affecting  man's  will,  274,  note,  275,  276,  and  note,  295, 
296. 

marriage  as  affecting  woman's  will,  276-283. 

provision  for  wife  and  child  to  prevent,  283-290,  and  note, 
by  subsequent  instrument,  229-241. 

capacity,  need  of  testamentary,  230,  231,  and  note. 

conveyance,  290-293,  and  note. 

general  revocatory  clause,  232,  233,  235. 

implied  revocation,  233-235,  238-241. 

improperly  e.xecuted  writing  not  a  will,  241,  242,  254-256,  262-266. 

^'last"  or  "last  and  only"  will,  238-241. 

properly  executed  writing  not  a  will,  236,  237,  and  note, 
capacity,  testamentarj',  to  revoke,  230,  231,  and  note, 
cotlicil,  as  affected  by  revocation  of  will,  258-261,  and  note, 
dependent  relative  revocation,  308-337. 

evidence  of  mistake  where  revocation  by  writing,  335. 

mistake  as  to  effect  of  revoking  a  reviving  codicil  on  revival  of  old 
will,  382,  383. 

mistake  as  to  loss  of  old  will,  316,  317. 

mistake  as  to  revival  of  old  revoked  will,  317,  318. 

mistake  as  to  validity  of  new  will,  308,  309,  and  note,  336,  337. 

mistake  as  to  validity  of  substituted  words  or  pages,  310,  311,  323- 
834. 


INDEX.  779 

[The  figures  refer  to  pages.] 

REVOCATION  OF  WILLS— Continued, 

mistake  of  fact,  309. 

mistaken  advice,  311-313,  and  note. 

mistake  of  law  as  to  capacity  of  substituted  beneficiary  to  take  gift, 
313-315.  and  note. 

mistake  of  law  in  general,  336.  337. 

revocation  in  order  to  make  new  will.  319-323.  ann  note, 
evidence  as  to  revocation,  252,  253,  266-268,  2S7-290,  29S,  307. 
partial  revocation,  254-256,  266-271,  and  note,  296. 
presumption  where  will  not  found,  307. 
prevention  of  revocation  by  fraud,  245,  note, 
ratification  of  revocation,  246,  note, 
testamentary  capacity  to  revoke,  230,  231,  and  note, 
uncompleted  act,  246-248. 
union  of  act  and  intent,  241-248. 
will  as  affected  by  revocation  of  codicil,  261,  note. 

SATISFACTION,  734-745. 

antecedent  gift  as,  742-745. 
debt  owed  by  legatee.  748-752. 
distinguished  from  ademption,  722,  note, 
of  residue,  734-741. 

SCRATCHING, 

see  Revocation  of  Wills. 

SIGNATURE, 

see  Execution  of  Wills. 

SOLEMN  FORM, 

probate  in,  507,  note. 

SPECIFIC  LEGACIES  AND  DEVISES, 

see  Abatement  of  Legacies  and  Devises ;  Probate  and  Administration. 

SPIRITUALISM, 

see  Mental  Capacity. 

STATUTES, 

see  Index  to  Statutes,  753. 

SUBSCRIBING   WITNESS, 

see  Execution  of  Wills ;   Witnesses. 

SUBSCRIPTION, 

see  Execution  of  Wills. 

SURVIVAL  OF  ACTIONS, 

see  Probate  and  Administration. 

TEARING, 

see  Revocation  of  Wills. 

TESTAMENTARY  CAPACITY  AND  INTENT,  9-82. 

see  Aliens ;    Conviction  of  Crime ;    Coverture  ;    Fraud ;    Infancy ;    Mental 
Capacity;    Mistake;    Revocation  of  Wills;    Undue  Influence. 

TITLE  OF  EXECUTORS  AND  ADMINISTRATORS, 
see  Probate  and  Administration. 

UNDUE  INFLUENCE,  31-50. 

affecting  part  of  will,  48-50. 
burden  of  proof,  40,  44,  and  note,  45,  note, 
confidential  relations  as  afl:ecting,  43-45,  and  note, 
evidence  of,  36,  note,  42,  note,  43,  note,  47,  48,  and  note, 
fraud  distinguished  from,  31,  note,  37,  note, 
illicit  relations  as  affecting,  46,  and  note, 
inequality  of  disposition  of  property,  37,  39,  40. 
relation  to  mental  capacity,  47,  48. 


780  INDEX. 

[The  figures  refer  to  pages.] 

UNDUE  INFLUENCE— Continued, 
Spiritualism,  30,  note, 
what  is,  35,  36,  note,  37,  note,  42,  note. 

UNITED  STATES, 

as  claimant,  Gil,  note, 
history  of  wills  in,  7,  8. 

USES,  3,  5. 

WILLS, 

see  Execution  of  Written  Wills ;   Republication  of  Wills ;   Revival  of 
Wills;    Revocation  of  Wills;    Witnesses, 
animus  testandi,  165,  166. 
conditional  wills,  103-107. 

distinguished  from  contracts  to  bequeath  or  to  devise,  90-92. 
distinguished  from  deeds,  83-86. 
distinguished  from  gifts   causa    mortis,   87-89. 
history  of  wills, 

personalty,  6.  7. 

realty,  3-6 
holographic,  94-97. 
in  writing,  93,  9i. 
joint  and  mutual,  107-111. 
materials  for  written  will,  93,  94,  and  note, 
nuncupative  wills,  97-103. 
olographic  wills.  94-97. 
separate  sheets,  130,  note. 

WITNESSES, 

see  Execution  of  Written  Wills, 
attesting, 

competency  of.  186-202. 

executor  as,  197-200,  and  note. 

husband  or  wife  of  beneficiary,  192-197. 
testifying, 

privilege  of  attorney  who  drew  will,  201,  202. 

WORDS  AND  PHRASES, 
"ademption,"  722,  note, 
"administration,"  521,  note. 

"administrator  cum  testamento  annexo,"  521,  note, 
"administrator  de  bonis  non,"  521,  note. 

"administrator  de  bonis  non  cum  testamento  annexo,"  522,  note, 
"administrator  pendente  lite,"  522,  note, 
"advancement,"  723. 
"apparent,"  256,  257,  and  note. 
"attestation,"  174,  note, 
"bequeath,"  2. 
"bequest,"  2. 
"civil  death,"  444. 
"consanguinity,"  385. 
"credible  witness,"  188,  190,  note,  198. 
"delusion,"  insane,  24. 
"descent,"  384,  and  note, 
"devise,"  2. 
"devisee,"  2. 
"devisor,"  2. 

"disposing  memory,"  18,  note, 
"disposing  mind,"  18.  note,  19,  note, 
"distributee,"  392-395. 
"end  of  will."  122-123,  127,  and  note, 
"executory  devises,"  4. 
"gift  causa  mortis,"  89,  note. 


INDEX.  781 

[The  figures  refer  to  pages.] 

WORDS  AND  PHRASES— Continued, 
"heir,"  384. 

"holographic  will,"  96,  note, 
"hotchpot."  725,  note, 
"idiot,"  14. 

"insane  delusion,"  24-27. 
"joint  will,"  111,  note, 
"joint  and  mutual  will,"  111,  note. 
"legacy,"  2. 
"legatee,"  2. 

"mutual  will,"  111,  note, 
"next  of  kin,"  395,  note, 
"nuncupative  will,"  101,  note, 
"ologi-aphlc  will,"  96,  note, 
"portion,"  742.  note. 

"presence,"  153,  154,  157,  158,  161,  162,  note. 
"probate  in  couiiiion  form,"  507,  note, 
"probate  in  solemn  form,"  507,  note, 
"qualified  heir,"  477. 
"residuary  bequest,"  715-717,  718-720. 
"satisfaction,"  722,  note, 
"special  administrator,"  522,  note, 
"testament,"  2. 

"testamentary  depositions,"  88,  89,  note,  222-225,  and  note. 
"testator,"  2. 

"undue  influence."  35,  36,  note,  37,  note,  42,  note, 
"will,"  1,  and  note,  122. 

WRITTEN  WILLS, 
see  Wills. 


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